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2017 DIGILAW 769 (ORI)

Ghanashyam Pradhan v. Ram Pratap Kheria

2017-07-21

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 21.4.2017 passed by the learned Civil Judge (Sr. Division), Bhubaneswar in Execution Case No. 109 of 1999, whereby and whereunder, the learned executing court rejected the application of the J.Drs for a direction to the D.Hr for production of village survey map of the suit schedule property. 2. This case depicts the plight of the J.Drs in enjoying the fruits of the decree. The matter has travelled six times to this Court. The successive petitions filed by the J.Drs. having been rejected, they filed six applications under Article 227 of the Constitution by way of C.M.P. or W.P.(C) one after another before this Court. Against some of the orders of the learned Single Judge, they have also filed two writ appeals before the Division Bench of this Court. Being failed in their attempt to obstruct the decree, they filed an application for a direction to the D.Hr to produce the village map. The learned trial court has rejected the same. 3. The opposite party as plaintiff instituted O.S.No.59 of 1983 in the court of the learned Civil Judge (Sr. Division), Bhubaneswar for declaration of right, title and interest over ‘B’ & ‘C’ schedule property, for eviction of defendant nos.1 to 3 (petitioners herein) from ‘B’ schedule property and certain other ancillary reliefs. The defendants filed written statement taking the plea of acquisition of right, title, interest and possession over ‘B’ schedule property on the basis of registered sale deeds and alternatively pleaded to have acquired title by way of adverse possession. The suit was decreed on 23.12.1998. The decree was drawn up on 23.1.1999. The D.Hr levied Execution Case No.109 of 1999. Assailing the judgment and decree of the learned trial court, the defendants filed T.A.No.8/7 of 2002/99 before the learned District Judge, Khurda at Bhubaneswar. The appeal was dismissed. Challenging the same, the defendants filed R.S.A.No.118 of 2002 before this Court. On 24.11.2006, Misc. Case No.566 of 2006 was filed by the plaintiff in the Second Appeal for appointment of receiver. Defendant no.1 was appointed as receiver in respect of ‘B’ schedule property with a direction to deposit the rent. For assessing fair market rent, the Tahasildar was directed to demarcate ‘B’ schedule land. L.P.A.No.16 of 2007 was filed by the defendants assailing the order of appointment of receiver and demarcation of ‘B’ schedule land. Defendant no.1 was appointed as receiver in respect of ‘B’ schedule property with a direction to deposit the rent. For assessing fair market rent, the Tahasildar was directed to demarcate ‘B’ schedule land. L.P.A.No.16 of 2007 was filed by the defendants assailing the order of appointment of receiver and demarcation of ‘B’ schedule land. The same was dismissed with observation that the objection will be raised after submission of report by the Tahasildar. The Tahasildar submitted report before this Court stating therein that the defendants did not allow the demarcation for which demarcation was postponed. This Court directed the Tahasildar to demarcate ‘B’ schedule property as per the sabik record of right and furnish report. The Tahasildar filed an affidavit stating that due to threat by the defendants, demarcation was postponed. The Second Appeal was dismissed on 29.10.2009 as withdrawn. While the matter stood thus, J.Drs. filed objection in the execution case on the ground that ‘B’ schedule property as per its description in the schedule of the decree is non-existent. J.Drs placed reliance on the report of the Tahasildar, Bhubaneswar. The learned executing court overruled the objection with a specific finding that ‘B’ schedule land is very much identifiable. Thereafter J.Drs filed C.R.P.No.8 of 2010 before the learned District Judge, Khurda at Bhubaneswar. The revision having been dismissed, they filed W.P.(C) No.21538 of 2010 before this Court. On 21.7.2011, the petition was dismissed with a direction to the learned executing court to incorporate the boundary of ‘B’ schedule property given in the plaint in the schedule available in the decree. This Court also directed the learned court to issue direction to the concerned police to provide help for causing effective measurement of the suit property at the time of delivery of possession. The decree was corrected by the learned executing court as per the direction of this Court. J.Drs assailed the order passed by the learned Single Judge pertaining to the direction to the learned executing court for correction of decree in Writ Appeal No.421 of 2011. On 10.4.2012 the order dated 11.8.2011 passed in W.P.(C) No.21538 of 2010 so far as the same relates to direction to the learned executing court to correct the decree was set aside with liberty to the D.Hr to file appropriate application for correction of the decree. On 10.4.2012 the order dated 11.8.2011 passed in W.P.(C) No.21538 of 2010 so far as the same relates to direction to the learned executing court to correct the decree was set aside with liberty to the D.Hr to file appropriate application for correction of the decree. The D.Hr filed an application under Section 152 read with Section 151 of C.P.C. in Execution Case No.109 of 1999 for correction of the decree. The same was allowed by the learned executing court on 16.8.2012. The J.Drs filed W.P.(C) No.15717 of 2012 before this Court challenging the order of the learned executing court, which was dismissed on 27.3.2014. They filed W.A.No.123 of 2014 assailing the order of the learned Single Judge. Writ Appeal was dismissed on 8.5.2017. While the matter stood thus, the J.Drs filed a petition under Order 21 Rule 11 (2) read with Section 151 C.P.C. praying inter alia to drop the execution case on the ground of defects in the petition. The D.Hr filed objection. The J.Drs had also filed another petition seeking the self-same relief. Both the petitions were dismissed with specific findings that the alleged defects pointed out by J.Drs are trivial in nature. Challenging the said orders, they filed C.M.P.No.404 of 2012 before this Court. The said petition was dismissed and the order of the learned executing court was confirmed. It was observed that after disposal of objection under Section 47 of C.P. Code, the J.Drs have no locus standi to raise further objection. This Court also directed the learned executing court to examine the execution petition and do all needful to direct the D.Hr to amend the execution petition, if the same is necessary. Thereafter the learned executing court reexamined the execution petition and came to conclusion that there is no necessity to amend the execution petition and the decree can be perfectly executed without any difficulty. J.Drs challenged the said order in C.M.P No.967 of 2016. Thereafter J.Drs filed a petition to stop issuance of writ on the basis of requisites filed by D.Hr in 2010 prior to correction of the schedule of property. They filed I.A.No.1 of 2016 under Section 47 and Section 151 read with Order 21 Rule 97 and Rule 101 to drop the execution case. The said petition was rejected with a direction to the D.Hr to file fresh requisites for issuance of writ of delivery of possession. They filed I.A.No.1 of 2016 under Section 47 and Section 151 read with Order 21 Rule 97 and Rule 101 to drop the execution case. The said petition was rejected with a direction to the D.Hr to file fresh requisites for issuance of writ of delivery of possession. On 25.7.2016, J.Drs filed another petition with a prayer to dismiss the execution case as barred by law of limitation. On the same day, they also filed a memo for scrutinizing the steps taken by the D.Hr for issuance of writ of delivery of possession. D.Hr filed fresh requisites for issuance of writ of delivery of possession of ‘B’ schedule property. I.A.No.1 of 2016 filed by J.Drs was dismissed on 28.9.2016. J.Drs challenged the said order in F.A.O. No.148 of 2016. The same is pending adjudication before the 4th Additional District Judge, Bhubaneswar. On 26.12.2016, the J.Drs filed a petition for clarification of the said order. On the same day, they also filed C.M.P. No.1928 of 2016 assailing the aforesaid order. This Court directed the learned executing court to dispose of the petition of J.Drs dated 26.12.2016 after affording opportunity of hearing before issuance of writ of delivery of possession. The petition dated 26.12.2016 of the J.Drs was disposed of with a finding that the requisites filed by the D.Hr for issuance of writ of delivery of possession are absolutely in conformity with the decree of the appellate court and there is no defect. On 12.1.2017, J.Drs filed Review Petition No.1 of 2017 seeking review of the order dated 9.1.2017. The same was dismissed on 30.3.2017 with a finding that the requisites filed by the D.Hr are absolutely correct and there is no defect. On 20.4.2017, the J.Drs filed another petition stating therein that the counsel for the D.Hr has committed fraud on court by submitting before the court that the revenue map of the suit mouza has been filed whereas on inspection of records by the counsel for the J.Drs, it was found that the same was not available on record. Accordingly, they prayed not to issue the writ of delivery of possession till survey map is filed by the D.Hr. On 21.4.2017, the learned executing court scrutinized the records and held that requisites are correct and the revenue map of the suit village has been filed. 4. Mr. Accordingly, they prayed not to issue the writ of delivery of possession till survey map is filed by the D.Hr. On 21.4.2017, the learned executing court scrutinized the records and held that requisites are correct and the revenue map of the suit village has been filed. 4. Mr. Dash, learned Advocate for the petitioners submitted that a direction may be issued to the D.Hr to produce the village map for execution of decree. He further submitted that J.Drs. have prosecuted lis diligently. Since the orders passed by the courts below were not in conformity with law, they approached this Court. The same cannot be construed as an abuse of process of the court. 5. Per contra, Mr. Mishra, learned Senior Advocate for the opposite party submitted that the J.Drs. have filed successive petitions to stall over the execution proceeding. The same is an abuse of process of the court. The map of the suit village has been filed. 6. As stated in the proceeding paragraphs, the judgment and decree of the learned trial court has attained finality in R.S.A.No.118 of 2002. The J.Drs filed several petitions, one after another. Thereafter they approached this Court six times. Against the order of the learned Single Judge, they have filed two Writ Appeals. Learned courts below held that the requisites filed by the D.Hr are absolutely correct and in consonance with the decree of the appellate court. Further the D.Hr has filed the revenue map of the suit village. Thus, the petition filed by the J.Drs for a direction to the D.Hr to produce village map is a ruse. 7. In the wake of aforesaid, the petition, sans merit, is dismissed.