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2018 DIGILAW 83 (TRI)

Chaya Rani Deb v. Nani Gopal Deb

2018-03-22

S.TALAPATRA

body2018
JUDGMENT & ORDER : 1. Heard Mr. D.C. Saha, learned counsel appearing for the petitioner as well as Mr. D.K. Biswas, learned counsel who has entered in the appearance for the respondent No.1. Notices are properly served on the other respondents but they preferred not to represent in their case in this court and as such, there is no impediment to dispose of this case without their representation. 2. Mr. D.C. Saha, learned counsel appearing for the petitioner has strenuously argued that the suit being T.S. No. 21 of 2011 was instituted by as many as eight plaintiffs and the petitioner herein was the plaintiff No.8 in that suit being T.S. No. 21 of 2011. 3. It is on record that the said suit was decreed by the judgment dated 22.02.2013 by the Civil Judge, Senior Division, Kailashahar. The defendants, the respondents No.13 to 20 herein, preferred an appeal under Section 96 of the CPC against the said judgment being T.A. 04 of 2013 in the court of the District Judge, Unokati Judicial District Kailashahar and for purpose of hearing, the said case was transferred to the Additional District Judge, Unokuti Judicial District, Kailashahar. After hearing the parties, the said appeal was dismissed by the judgment dated 23.02.2018 on affirmance of the judgment passed by the trial court. 4. It is not in dispute that the petitioner (the plaintiff No.8) was not properly given notice and she could not participate in the trial or in the appeal. The plea as raised in this petition is that her signature was obtained fraudulently on the plaint and the Vokalatnama filed in the appeal. She was completely unaware about the facts and the description of land as made in the schedule appended to the plaint. While the said decree had been put on execution, the petitioner raised objection that the suit land has not been described in the decree following the prescription of Order 20 Rule 9 of the CPC and as such, the said decree cannot be executed. 5. In support of that contention, Mr. While the said decree had been put on execution, the petitioner raised objection that the suit land has not been described in the decree following the prescription of Order 20 Rule 9 of the CPC and as such, the said decree cannot be executed. 5. In support of that contention, Mr. Saha, learned counsel has referred a decision of the Jharkhant High Court in Lokmanya Prasad versus Jamila Khatoon & Others reported in AIR (2010) Jharkhand 77 where the High Court of Jharkhand had occasion to observe as under : “In terms of the provisions of Order 20 Rule 6 CPC, decree has to be prepared in consonance with the judgment and it has to contain all the necessary particulars, as required in the Rule. Rule 9 of Order 20 CPC, which lays down that where the decree is for recovery of immovable property, it shall contain the description of such property sufficient to identify the same and where such property can be identified by boundaries or by its number in the Record of Settlement or Survey. The decree shall specify such boundary or number.” 6. Admittedly, in the decree, it is found that no such description was placed but a reference has been made as the suit land. While the decree was put on execution in the petition filed under Order 21, Rule 11 of the CPC, the decree holder extracted the description of the suit land from the plaint. 7. Mr. Saha, learned counsel has made a robust statement to impress upon this court that she [the plaintiff No.8] was not aware that the decretal land by means of the description in the plaint included the part of the landed property where she has been residing permanently for long. Mr. Saha, learned counsel has further submitted that in a failed attempt made under Section 151 of the CPC she pressed before the trial court, to stay the said decree but that was refused by the order dated 26.10.2017. In the said execution case being Ex. 08(T)/16 the counsel for the petitioner herein, raised the objection and the executing court has observed that the petitioner, meaning the petitioner herein, being a decree holder is seeking relief against the other decree holders. That being a joint decree, according to the execution court, the petitioner cannot adopt such process. 8. In the said execution case being Ex. 08(T)/16 the counsel for the petitioner herein, raised the objection and the executing court has observed that the petitioner, meaning the petitioner herein, being a decree holder is seeking relief against the other decree holders. That being a joint decree, according to the execution court, the petitioner cannot adopt such process. 8. It appears from the records that three separate objections under Section 47 of the CPC on the same ground were filed by the petitioner by stating that she has arrived at a settlement with the judgment-debtors. She is not interested in execution of the decree. It is apparent, therefore, that the petition under Section 151 of the CPC was collusive in nature and rightly the execution court has rejected both the objection filed under Section 47 of the CPC as well as the petition under Section 151 of the CPC. A reasoned order has been passed by the Execution Court and therefore this court finds no reason to interfere with the said order dated 26.10.2017. Apart that, the same objection has been raised in the course of hearing by Mr. Saha, learned counsel appearing for the petitioner, that fraud has been exercised on the petitioner i.e. the plaintiff No.8. This court is not persuaded by such rationale having noticed how the petitioner has been prosecuting to thwart the process of justice. Hence, this petition is dismissed. 9. However, the petitioner shall be at liberty to institute the appropriate suit placing the ground of fraud as pressed before this court. This order shall not stand as impediment in that course. No order as to costs.