Dipu Datta @ Nepal Chandra Datta v. Rakhal Chandra Datta
2018-09-07
SABYASACHI BHATTACHARYYA
body2018
DigiLaw.ai
JUDGMENT : 1. The holder of an eviction decree has preferred the instant revisional application against an order passed by a revisional court allowing a revisional application of the petitioner under Section 115A of the Code of Civil Procedure, thereby setting aside an order of the executing court allowing the judgment-debtor’s application under Section 47 of the Code of Civil Procedure, but on certain observations affecting the petitioner adversely. 2. The eviction decree passed in favour of the present petitioner, in fact, was of a peculiar nature. The trial court directed that the plaintiff was declared to have right, title and interest as a lease-holder in the suit property and that a gift deed, dated May 27, 2004, was declared to be void and non-operative and without any force of law. The trial court also passed a decree of recovery of possession of the suit property by evicting the defendant and removing all sorts of his possession therefrom “after vacating defendant’s share in ancestral property and business”, which was apparently beyond the scope of the suit. However, the defendant was directed to vacate and hand over possession of the suit property to the plaintiff within ninety days from the date of the decree. It was also directed that, in default, the plaintiff would be at liberty to : (i) execute the decree by proceeding according to law; or (ii) transfer the suit property in the name of the defendant according to the proper procedure prescribed by law for maintaining domestic happiness and understanding as per the terms of agreement among brothers. 3. Despite the absurdity of such decree, the same was not challenged by the present petitioner. Subsequently, when execution was levied, the judgment-debtor/opposite party, quite naturally, took out an application under Section 47 of the Code of Civil Procedure alleging that the decree was inexecutable, taking advantage of the peculiarity of the decree. Such objection was sustained and the executing court allowed the application under Section 47 of the Code of Civil Procedure. 4. Being aggrieved, the present petitioner preferred a revisional application under Section 115A of the Code of Civil Procedure, which was allowed by the impugned order.
Such objection was sustained and the executing court allowed the application under Section 47 of the Code of Civil Procedure. 4. Being aggrieved, the present petitioner preferred a revisional application under Section 115A of the Code of Civil Procedure, which was allowed by the impugned order. The revisional court, while allowing the revision, set aside the impugned order and directed the revisionist to comply with the decree in true spirit by vacating the respondent’s share in ancestral property and business within one month from the date of that order. 5. Although there might be some irregularity in the ordering portion of the impugned order, it appears that no other course was left open to the revisional court in view of the nature of the decree sought to be implemented. Despite the execution of the decree having not been re-opened by the impugned order, it would now be an arduous task for decree-holder/petitioner to have a proper execution of the decree, for obvious reasons. However, while fully sympathizing with the decree-holder/petitioner, this Court is unable to provide any better solution to the petitioner since the petitioner took it upon himself not to challenge the decree-in-question at any point of time. 6. Accordingly, C.O. No. 3068 of 2018 is dismissed in the light of the aforesaid observations. 7. There will be no order as to costs. 8. Urgent certified website copy of this order, if applied for, be made available to the petitioner upon compliance of all requisite formalities.