Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 319 (GAU)

Ajnur Ali (Md. ) v. Sadek Ali (Md. )

2018-02-20

A.K.GOSWAMI

body2018
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. MK Sharma, learned counsel for the petitioner. Also heard Mr. AC Sarma, learned senior counsel, appearing for the respondent. By this application under Article 227 of the Constitution of India read with Section 115 CPC, the petitioner assails the order dated 19.09.2017 passed by the learned Civil Judge No. 1, Kamrup (Metro) at Guwahati in Petition No. 246/2016, which was filed by the petitioner under Section 47 CPC. 2. The petitioner filed a title suit being Title Suit No. 206/2009 in the Court of the learned Civil Judge No. 1, Kamrup (Metro) at Guwahati praying for a decree (i) for specific performance of contract by execution of a registered sale deed of Schedule-B land to the plaintiff by receiving proportionate balance consideration of Rs. 3,00,000/- and/or execution of registered sale deed of Schedule-A land to the plaintiff and proforma defendant Nos. 9 & 10, if the proforma defendants are also interested for specific performance of contract dated 19.03.2007, (ii) to execute registered sale deed by the Court in favour of the plaintiff on failure of the defendant No. 1 to execute sale deed and to issue precept to the revenue authorities for such registration and correction of records of right, (iii) for permanent injunction restraining the defendant No. 1 and his men, heirs, attorneys, assigns, administrators, executors etc. from transferring/alienating any part of the suit land of Schedule-B and restraining them from entering into the suit land of Schedule-B, (iv) for cost of the suit in favour of the plaintiff, etc. The plaintiff, alternatively, had prayed for refund of Rs. 30,00,000/- along with interest thereon at the prevailing rate from 19.03.2007 till final disbursement of the decreetal amount. 3. Schedule-A land measures 3 Bighas 4 Kathas 13 Lechas and Schedule-B is a plot of land measuring 6 Kathas 11 Lechas within Schedule-A land. 4. The petitioner has not brought on record of this case the Deed of Agreement dated 19.3.2007. 5. The defendant No. 1 had filed his written statement-cum-counter claim. 6. The learned trial Court, by judgment dated 23.04.2015, dismissed the suit of the plaintiff but the counter-claim of the defendant No. 1 was partly allowed to the extent of recovery of possession of the "Schedule of Encroached Land" given in the counterclaim from the plaintiff and permanent injunction restraining the plaintiff, his men, agents, etc. 6. The learned trial Court, by judgment dated 23.04.2015, dismissed the suit of the plaintiff but the counter-claim of the defendant No. 1 was partly allowed to the extent of recovery of possession of the "Schedule of Encroached Land" given in the counterclaim from the plaintiff and permanent injunction restraining the plaintiff, his men, agents, etc. from interfering with in peaceful possession of the suit land by the defendant No. 1 with the direction that the defendant No. 1 shall return the advance of Rs. 9,00,000/- to the plaintiff along with interest @ 12% from 19.3.2007 till realization. Against that judgment & decree, no appeal was preferred either by the plaintiff or by the defendant No. 1. 7. It is pointed out by Mr. AC Sarma that the defendant No. 1 had already deposited the amount of Rs. 9,00,000/- along with interest before the learned trial Court about 6(six) months back. 8. The "Schedule of Encroached Land" indicated in the counter-claim is a plot of land measuring about 2 Kathas. The "Schedule of Encroached Land" is part of Schedule-A land. 9. The judgment-debtor/petitioner filed an application under Section 47 CPC being Petition No. 246/2016 in Title Execution Case No. 9/2016, which was filed by the decree-holder/defendant No. 1. The said application having been rejected by order dated 19.9.17, as noticed earlier, this instant application is filed. 10. Mr. MK Sharma has submitted that Schedule-A land of the plaint is owned by not only the defendant No. 1 but by many other defendants and, therefore, without ascertaining the share of the defendant No. 1, decree cannot be put into execution as the definite share of the defendant No. 1, in absence of others joining in the execution application, cannot be ascertained. It is further submitted by him that the other defendants did not contest the proceeding and that lends credence to his contention that decree is not executable. 11. Mr. AC Sarma, learned senior counsel appearing for the respondent No. 1/decree-holder has submitted that the scope of an application under Section 47 CPC is limited and the executing Court is only to see as to whether the decree is executable or is a nullity but cannot re-open questions which could have been made subject matter of an appeal/revision. 11. Mr. AC Sarma, learned senior counsel appearing for the respondent No. 1/decree-holder has submitted that the scope of an application under Section 47 CPC is limited and the executing Court is only to see as to whether the decree is executable or is a nullity but cannot re-open questions which could have been made subject matter of an appeal/revision. He has submitted that on the face of the very prayer made in the suit praying for a decree for execution of the sale deed by the defendant No. 1 belies the contention of Mr. MK Sharma. Accordingly, he submits that this petition has no merit. 12. Law is well settled that a decree passed by Court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in an incidental proceeding. All questions relating to fact and law which had been raised or could have been raised and decided during trial, appeal or revision cannot be reopened in an execution proceeding. A decree of Court of law being sacrosanct in nature, the execution thereof cannot be thwarted on mere asking and on untenable or unfounded grounds having no bearing on the validity or the executability thereof. The purpose of scrutiny under Section 47 of the CPC is limited to objections with regard to its executability on the ground of jurisdictional infirmity and voidness. Thus, exercise of power under Section 47 of the CPC is microscopic in character and lies in a very narrow inspection hole. In the touchstone of the purview and ambit of the power to be exercised by the executing Court while considering an application under Section 47 of the CPC, when the challenge to the execution of the decree made by the petitioner is examined, the emptiness of the ground urged manifests itself as the plaintiff himself had sought for a decree of execution of a sale deed by the defendant No. 1 and, therefore, the plea raised that there are other owners in respect of the suit land cannot be countenanced. In view of the above discussion, I find no merit in the application and the same is dismissed. No cost.