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2017 DIGILAW 768 (ORI)

Baisakhi Mohanta @ Mahanta v. Mangulu Naik

2017-07-21

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 27.11.2015 passed by the learned Civil Judge (Sr. Divn.), Keonjhar in Execution Case No.3 of 2013, whereby and whereunder the learned Executing Court dismissed the execution proceeding as infructuous. 2. The case has a chequered history. This is the fourth journey of the petitioner to this Court. Opposite party as plaintiff filed T.S. No.5 of 1983-I in the court of the learned Civil Judge (Sr. Divn.), Keonjhar for declaration of right, title and interest and recovery of possession impleading Ananta Narayan Bhanjadeo and Manoj Manjari Devi as defendants. The suit was decreed exparte. Thereafter the opposite party levied Execution Case No.23 of 1993. A civil court commissioner was deputed for demarcation and delivery possession. On 8.5.1984, the delivery possession was effected. The petitioner filed an application being M.J.C. No.45 of 1984 under Order 21 Rule 99 C.P.C. alleging that the decree holder managed to take possession of a portion of her land in connivance with civil court commissioner and her boundary wall had been broken. Her plea is that she purchased Ac.0.020 dec. by means of a registered sale deed in the year 1968. The opposite party filed objection. The learned Executing Court allowed the said application. Challenging the said order, the opposite party filed Misc. Appeal No.6 of 1985 before the learned District Judge, Keonjhar. The appeal was allowed and the case was remanded to the learned Executing Court for fresh disposal. After remand, learned Executing Court appointed a civil court commissioner to demarcate the land. Evidence was led by the petitioner. The petition was dismissed on 11.03.1988. The petitioner preferred Misc. Appeal No. 5/88 before the learned District Judge, Keonjhar against the said order. The appeal was allowed on 10.11.1989 and the case was remanded to the executing court with a direction to measure the land of the decree holder by another Amin commissioner and deliver possession of an area Ac.0.020 dec. as described in the sale deed to the petitioner. After remand, a fresh report was submitted by the Amin. M.J.C. No.45/84 was allowed on 27.3.1993. Opposite party preferred Misc. Appeal No. 13 of 1993 challenging the said order. The learned District Judge, Keonjhar set aside the order and allowed the appeal on 27.2.1999. Challenging the said order, the petitioner filed C.R. No. 166 of 1999 before this Court. After remand, a fresh report was submitted by the Amin. M.J.C. No.45/84 was allowed on 27.3.1993. Opposite party preferred Misc. Appeal No. 13 of 1993 challenging the said order. The learned District Judge, Keonjhar set aside the order and allowed the appeal on 27.2.1999. Challenging the said order, the petitioner filed C.R. No. 166 of 1999 before this Court. By order 20.06.2002, this Court allowed the revision and remanded the matter back to the learned District Judge, Keonjhar for disposal of the appeal afresh on merit as well as maintainability. After remand, learned District Judge, Keonjhar heard the matter in extenso on the question of maintainability and merit. It held that the appeal was maintainable and allowed the same. Felt aggrieved, the petitioner filed Civil Revision No.230/03 before this Court. This Court held that the order passed by the learned trial court on the application filed by the petitioner under Order 21 Rule 97 C.P.C. amounts to a decree and is appealable under Sec.96 C.P.C. and as such revision is not maintainable. It was further held that even assuming the civil revision to be a memorandum of appeal filed under Sec.100 C.P.C., the case does not involve any substantial question of law and accordingly, dismissed the petition. The petitioner filed W.P.(C) No.7613 of 2007 before this Court against the order dated 11.3.2003 passed by the learned District Judge, Keonjhar in Misc. Appeal No.13 of 1993. The same was dismissed on 31.10.2007. While the matter stood thus, the petitioner levied Execution Case No.3 of 2013 before the learned Civil Judge (Sr. Divn.), Keonjhar for delivery of possession of the land basing on the conclusion arrived at by the learned District Judge, Keonjhar. An application was filed for deputation of commissioner under Order 26 Rule 9 C.P.C. for identification of the land. Learned Executing Court assigned the following reasons and dismissed the application for appointment of commissioner as well the execution case. “Further more, being aggrieved of the same this Dhr. has knocked the doors of the Hon’ble Court and the Hon’ble Court has pleased to dismiss the different proceedings against this Dhr. On careful scrutinization of para-11 of judgment passed by the Hon’ble District Judge in Misc. “Further more, being aggrieved of the same this Dhr. has knocked the doors of the Hon’ble Court and the Hon’ble Court has pleased to dismiss the different proceedings against this Dhr. On careful scrutinization of para-11 of judgment passed by the Hon’ble District Judge in Misc. Appeal No.13/93, it is cogent and clear that land of Dhr had been subject to demarcation and delivery of possession and it was a direction by the Hon’ble District Judge that the land this Dhr identified by Civil Court Commissioner should not be touched in execution of the decree. During course of hearing, learned counsel for Dhr submitted that Mangulu Naik has not proceeded further with the execution of decree and as per order dtd.03.04.1999 the execution case no.23/83 has been dropped. So, in my considered view with no cause of action, having no decree in favour of Dhr/petitioner, when her relief claimed has been answered during pendency of MJC No. 45/1985, no execution proceeding is tenable in eye of law.” 3. Mr. B.N. Bhuyan, learned counsel for the petitioner submitted that Ac.0.03 dec. of land of the petitioner has been wrongly delivered by the executing court to the plaintiff. The petitioner has no grievance with regard to the suit schedule land, which has delivered to her. But under no circumstances, the land belonging to the petitioner can be delivered to the plaintiff. It is a mistake of the court. If a court committed mistakes, then it has inherent jurisdiction to rectify the same. The party cannot be remediless. 4. Per contra, Mr. S.K. Mishra, learned counsel for the opposite party submitted that observation made by the learned District Judge can be construed to a decree. The execution case filed by the petitioner is misconceived. Learned Executing Court has rightly dropped the petition. 5. Actus Curie Neminmen Gravabit is an elementary rule of justice. No party should suffer by the mistake of the court. A court has inherent power to rectify its mistake and ensure that if a person has suffered by the mistake of the court, he should be restored upon the position he would have occupied had there been no mistake. 6. In a lis between the plaintiff and defendant, if a land of the 3rd party has been delivered wrongly to the D.Hr. in execution of a decree, the court has ample power to redeliver the land to the 3rd party. 6. In a lis between the plaintiff and defendant, if a land of the 3rd party has been delivered wrongly to the D.Hr. in execution of a decree, the court has ample power to redeliver the land to the 3rd party. The plaintiff has no claim over the land of the petitioner, who was a 3rd party to lis. 7. In Bhavan Vaja and others vs. Solanki Hanuji Khodaji Mansang and another, AIR 1972 SC 1371 , the apex Court held thus: “19. It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution court and if that court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. xxx xxx xxx” 8. The execution petition in stricto sensu may not be maintainable, but the same can be treated as application under Sec.151 C.P.C. The petitioner cannot be remediless. In the emphatic words of B.L. Hansaria, C.J. (as he then was) in Gulzar Khan vs. Commissioner of Consolidation and others, 76 (1993) C.L.T. 161 that there may be pain without injury, sorrow without tears, but not a right without remedy. 9. In the wake of aforesaid, the impugned order is quashed. The petition is allowed. Learned Executing Court shall appoint a commissioner for measurement of the land of the petitioner as well opposite party and deliver the land of the petitioner within three months.