JUDGMENT & ORDER : 1. Heard Mr. D.K. Daschoudhury, learned counsel appearing for the appellants as well as Mr. S. Mahajan, learned counsel appearing for the decree-holder, the respondent No.1. None appears for the remaining respondents, despite due notice from this court. 2. This is an appeal under Section 100 of the CPC against the judgment and order dated 08.01.2014, delivered in Civil Misc. Appeal No.01 of 2013 by the District Judge, South Tripura, Udaipur. By the said appeal, the order dated 03.06.2013 delivered in Civil Misc. 26 of 2011 [arising from T.S.EXE(T) 14 of 2011] by the Executing Court [the Civil Judge, Senior Division, South Tripura, Udaipur] was challenged and by the impugned order dated 08.01.2014, the first appellate court affirmed the said judgment dated 03.06.2013. This appeal was admitted on the following substantial question of law : “When the report by the Survey Commissioner has observed that the decretal land cannot be identified by the description of the land as provided in the decree whether executing court was correct in allowing the execution of the decree by dispossessing the appellants from the land on the basis of the identification made by the decree holder?” 3. For purpose of appreciating the said substantial question as formulated by the order dated 28.07.2014, it would be apposite to lay down the essential fact leading to the impugned order. At the time of executing the decree, as obtained by the respondent No.1, it was the claim of the present appellants that they were evicted from their lawful possession. When they were evicted, they filed an application under Order 21, Rules 97 to 106 read with Section 144 and 151 of the CPC for setting aside the said execution and for restoration of their possession over the land as described in Schedule-B and Schedule-C of the said application. 4. According to the appellants, the Schedule-A land is the decretal land which is a distinct land from the land as described in the Schedule-B and the Schedule-C. The Schedule-A land pertains to C.S. plot No.141(p), hal plot No.3204 of RS khatian No.975 measuring 0.20 acre under mouja R.K. pur RF. 4. According to the appellants, the Schedule-A land is the decretal land which is a distinct land from the land as described in the Schedule-B and the Schedule-C. The Schedule-A land pertains to C.S. plot No.141(p), hal plot No.3204 of RS khatian No.975 measuring 0.20 acre under mouja R.K. pur RF. But the appellants have been dispossessed while executing the said decree as passed in T.S. 48 of 2009 vide execution case No.EXE(T) 14 of 2011 from their possession over the land pertaining to plots No.1411 (p) and 1548 (p) corresponding to RS plot No.3261/3756 of khatian No.7321/1 under mouja R.K.pur RF measuring 0.06 acre [so far the appellants No.1 and 2 are concerned] and 0.08 acre [so far the appellants No. 3 and 5 are concerned]. Similarly, the appellant No.4 has been dispossessed. According to the appellant No.4, from his allotted land pertaining to C.S. plots No.B/45, 1411/1548(p) corresponding to RS plots No.3261/3557/5174 measuring 0.05 acre under mouja R.K. pur RF he has been dispossessed. The said land was allotted to him by the allotment case No.21 of 1997. 5. The appellants in their said application had stated that they were illegally dis-possessed from the said land on 16.12.2011 by demolishing their home stead, huts etc. Therefore, they have claimed the loss and damages to the extent of Rs.1,75,000/- so far the appellant No.1 is concerned, Rs.75,000/- so far the appellant No.2 is concerned, Rs.1,00,000/- so far the appellant Nos. 3 and 4 is concerned and Rs.50,000/- so far the appellant No.5 is concerned. Before the decree was executed, according to the appellants two Survey Commissions were appointed. Since the second Survey Commission was appointed, the report of the first Survey Commission was suppressed and declared not accepted by the Executing Court. The second Survey Commission’s report was submitted on 17.12.2011. 6. According to the appellants, they were dispossessed evicted from their land as described in the Schedule-B and the Schedule-C on 16.12.2011 and thereafter, on 20.12.2011 when the order of execution under Section 50 was passed in the said execution case on 15.05.2012, according to them, the cause of action arose and when the appellants obtained the certified copy of the judgment and decree delivered in T.S.48 of 2009 they came to know about the perspective facts. Thus, the executing court has observed that any application to be filed under Rule 99 of Order 21 of the CPC has to be filed within thirty days, but the said application was filed on 05.07.2012 and it was registered as Civil Misc. 26 of 2012. 7. The respondent No.1 herein and the original defendants were represented in the proceeding and the plaintiff decree holder, the respondent No.1 herein filed the objection against the said petition contending that the appellants did not have any legal footing to possess the land of the decree holder and hence, they were liable to be evicted and there was no requirement of recalling the order of the execution case by way of restoring their possession. It is apparent on the face of the objection that the claim of the plaintiff-decree holder is related only to the decretal land, not the adjoining land. Her impression was that the appellants were possessing her land and for recovery of which the said decree was passed. It was by way of execution, her land has been recovered and handed over to her and the formal order closing the execution proceeding was passed by the Execution Court. Only thereafter, the said application under Rule 99 read with Section 101 of the order 21 CPC was filed by the aggrieved appellants. The court below for purpose of determining the said application, treating that as if it were a suit, framed the following issues: “i. Whether the Judgment and Decree passed in Case No. Title Suit 48 of 2009 dated 27.08.2010 and 31.08.2010 passed by this Court are not binding on the present petitioners and ii. Whether present suit was a collusive suit and hence, the present decree is un-enforceable and non executable ? iii. Whether the decreetal land in Case No. Title Suit 48 of 2009 is un-identifiable and untraceable having no existence? iv. Whether the plaintiff-petitioners are entitled to be resisted with the possession of the Schedule B and Schedule C land of the petition? v. Whether the plaintiff-petitioners are entitled for any other costs, damages and compensation?” 8. In this regard and to make the narrative precise, this court would observe that at the outset Mr. iv. Whether the plaintiff-petitioners are entitled to be resisted with the possession of the Schedule B and Schedule C land of the petition? v. Whether the plaintiff-petitioners are entitled for any other costs, damages and compensation?” 8. In this regard and to make the narrative precise, this court would observe that at the outset Mr. D.K. Daschoudhury, learned counsel appearing for the appellants has made a statement which is very categorical that over the decretal land which has been described in the Schedule-A of the said application filed under Rule 99 read with Section 101 of Order 21 of the CPC, the appellants do not have any claim whatsoever. It thus clearly implies that so far the judgment and decree passed in Case No. T.S. 48 of 2009, the appellants do not have any opposition, they are wholly concerned with the recovery of the possession of the Schedule-B and the Schedule-C land. 9. From a reading of the order dated 03.06.2013 delivered in Civil Misc.26 of 2012 by which the said application was finally decided, it appears that no issue had been framed to identify whether the Schedule-B and Schedule-C land are part and parcel of the Schedule-A land or the Schedule-A land vis-a-vis the Schedule-B and Schedule-C land is separate and distinct land. If the Schedule-B and the Schedule-C land are not part and parcel of the Schedule-A land, there cannot be any amount of doubt, without even determining the status of the appellants that the said execution was grossly wrong and it required to be interfered with. But in any case if it is found that the Schedule-B and the Schedule-C land are part and parcel of the Schedule-A land, then the question of status of the appellants may be relevant for a remote case declaring the character under what authority they were possessing the land or how they came into the possession. Whether they came into the possession constructively or they were in the real possession over the Schedules-B and C land. Further, whether they would be allowed to continue in the said land can also be determined by the executing court after giving them the appropriate opportunity. In the present case, the appellants have set in a legal action. Whether they came into the possession constructively or they were in the real possession over the Schedules-B and C land. Further, whether they would be allowed to continue in the said land can also be determined by the executing court after giving them the appropriate opportunity. In the present case, the appellants have set in a legal action. If it is found that they were possessing the suit land illegally and they cannot show any document of holding that land, they can be treated as the trespassers over the land. In that case, they cannot resist the execution of the land if further it is shown that their trespass is after passing of the decree. But the first and foremost factor to be considered is that the executing court while determining the application being Civil Misc.26 of 2012, ought to have framed a issue to determine the relation between the Schedule-A land and the Schedule-B and C land. But that was not so done and without doing so, the executing court while determining the said application has observed as under: “On perusal of Exhibit-5, it reveals that the process server on 16.12.2011 along with the bailiff and the Survey Commissioner reached the decretal land and they accordingly, measured the decretal land properly by giving a specific identification mark around the decretal land and gave the possession of the decretal land to the plaintiff-decree holder-respondent properly and the decree was executed properly by the process server. On over all perusal of the Exhibit-5 from the Process Server’s Report dated 09.11.2011, it reveals that the plaintiff-petitioners of this case were living in the decretal land in three houses. Also on perusal of the Process Server’s Report dated 17.12.2011, there is no mentioning of the plaintiff-petitioners of this case in the decretal land as the decree was executed properly in presence of the plaintiff-decree holder-respondent and Judgment Debtor-defendant-respondents of that case and at that time the plaintiff-petitioners of the present petition were not found in the decretal land as it is clear from the Process Server’s Report. No objection was also raised on behalf of the plaintiff-petitioners of this case at the time of execution of the decretal land on 16.12.2011. There was no iota of evidence in the Process Server’s Report about presence of the plaintiff-petitioners over the decretal land on 16.12.2011. No objection was also raised on behalf of the plaintiff-petitioners of this case at the time of execution of the decretal land on 16.12.2011. There was no iota of evidence in the Process Server’s Report about presence of the plaintiff-petitioners over the decretal land on 16.12.2011. Even if it is believed that the plaintiff-petitioners were found living on the decretal land on 05.11.2011. But there was no whereabouts of the plaintiff-petitioners on the next date, i.e., on 16.12.2011, the day on which the decree was executed properly. If as per the plaintiff-petitioners’ case the report of Process Server dated 09.11.2011 is believed to be true then the Report of the Process Server dated 17.12.2011 is also believed to be true. The plaintiff-petitioners cannot be allowed to put forward the submission that the Report dated 09.11.2011 is true one and the Report dated 17.12.2011 is wrong one. The plaintiff-petitioners cannot be allowed to take benefit of the Report which supports their case and reject the report which goes against them. Hence, Exhibit-5 though supports the plaintiff-petitioners’ case to some extent but it cannot be said to have supported the plaintiff-petitioners’ case fully as the plaintiff-petitioners of the present petition did not raised any objection during execution of the decree and there is no evidence that on what basis and under what rights the plaintiff-petitioners were possessing the decretal land.” Having observed thus, the said process was discarded and being aggrieved, the appellants herein, filed the miscellaneous appeal and the said appeal as stated was dismissed and the [judgment and order] in the miscellaneous appeal has been questioned in this appeal. 10. Mr. D.K. Daschoudhury, learned counsel appearing for the appellants has categorically submitted that the appellants are poor persons and they migrates from one place to another in search of their livelihood and on the day of execution, they could not resist the proceeding. When they found that they were dispossessed from their land, they took initiative to collect the documents. In the process of collection of those documents, they wasted substantial part of the time. However, Mr. Daschoudhury, learned counsel has fairly submitted that the date of delivery of the documents cannot be treated as the day of cause of action. When they found that they were dispossessed from their land, they took initiative to collect the documents. In the process of collection of those documents, they wasted substantial part of the time. However, Mr. Daschoudhury, learned counsel has fairly submitted that the date of delivery of the documents cannot be treated as the day of cause of action. But lack of knowledge and the days wasted for collection of the certified copy are liable to be discounted in terms of the Limitation Act because this is an application, not strictly a suit and moreover in the event of institution of suit, this days are to be excluded for obvious reason as they were taken completely aback because there were not made parties in the suit, outcome of which is the decree that has been executed by evicting them and demolishing their homestead etc. 11. Mr. S. Mahajan, learned counsel appearing for the respondents has quite succinctly submitted that there cannot be any amount of doubt that the appellants were squatting over the decreetal land and as such, they have been evicted. From the Process Server’s Report prepared on the date of execution, it would be clearly apparent that even the appellants were not present on the day of execution. They are attempting to make out a case which is not borne in the records and as such, no interference is required. 12. But when this court proposed that since Mr. Daschoudhury, learned counsel has made a categorical statement that over the decreetal land which has been described in the Schedule-A of the application under Rule 99 and 101 Order 21 of the CPC then appellants do not have any claim, if the decreetal land as described in the Schedule-A vis-à-vis the Schedules-B and C of the said application are identified to the effect that whether the decree holder-respondent will have any objection or not. Even this court has indicated that the status-quo as on today shall be maintained till such survey is carried out. Mr. Mahajan, learned counsel has agreed to the proposition and as such, there is a consensus between the counsel for the parties to the extent that a survey may be carried out for proper identification of the decreetal land as described in the Schedule-A of the said application being Civil Misc.26 of 2012 and the land described in the Schedules-B and C ascribed there. 13. 13. For this purpose, the impugned order dated 08.01.2014 passed by the appellate court in Misc. Appeal No.1 of 2013 and the order dated 03.06.2013 as delivered in Civil Misc. No.26 of 2013 [in T.S.EXE(T) 14 of 2011] by the Civil Judge, Senior Division, South Tripura, Udaipur are set aside but without disturbing the status and post execution. It is further directed that the executing court (the Civil Judge, Senior Division, Gomati, Udaipur) shall appoint a Survey Commissioner with reference to: Whether the decreetal land as described in the Schedule-A in the application being Civil Misc. 26 of 2013 [arising from T.S.EXE(T) 14 of 2011] is part and parcel of the land as described in the Schedules-B and C of the said application on the status of land as described in the Schedules-B and C land ante execution? 14. While surveying those aspects as emerged, the Survey Commissioner shall take aid of the settlement map prepared during the survey and settlement operation and identify the land according to the map and the record of rights. For that purpose, all necessary records be inspected by the Survey Commissioner. That apart, he can take aid of the records maintained in the Tehashil or to its superior office. The executing court shall issue such letter of appointment within a period of 30(thirty) days from the date when a copy of this order be received by him. It is specifically mentioned here that the executing court is given liberty to appoint the Survey knowing person working under the Directorate of Settlement and Land Records or any Senior Surveyor working in the office of the Deputy Collector of the concerned jurisdiction. The cost of the Survey shall be borne by the appellants herein. After receipt of the Survey Commissioner’s report the parties will be entitled to all the rights as described under Order 26 of the CPC and thereafter, the executing court shall decide whether to accept the Survey Commissioner’s report or not. If the Survey Commissioner’s report is found to have any defect in that case further Survey Commissioner may be appointed by the executing court. If from the report, it is evident that the Schedules-B and C land are part and parcel of the Schedule-A land and then this proceeding shall be closed and no further proceeding will be allowed to be carried out by either of the parties. If from the report, it is evident that the Schedules-B and C land are part and parcel of the Schedule-A land and then this proceeding shall be closed and no further proceeding will be allowed to be carried out by either of the parties. But if it is found that the Schedules-B and C land are distinctly separate from the Schedule-A land then the Schedules-B and C land shall be released forthwith by the executing court and the due action shall be taken to restitute that land to the appellants . If it is found that any part of the Schedule-B and Schedule-C land has been taken over at the time of execution, that part shall be demarcated by the Survey Commissioner and the executing court shall recover those parts from the respondent No.1 and handover to the appellants. 15. For purpose of avoiding any sort of confusion, it is clearly observed that the parties will be bound by the Survey Commissioner’s report. Till the executing court takes a decision on the basis of the Survey Commissioner’s report, statusquo as on today shall be maintained. In the event, the Survey Commissioner’s report holds that the Schedule-B and the Schedule-C land has been recorded without proper scrutiny, in that case damage can be determined by the Civil Court. In the result, this appeal is allowed to the limited extent as stated above. Draw the decree accordingly. Send down the records thereafter with a copy of this judgment and order.