Majda Khatoon wife of Late Md. Shagir v. Rup Chand Jain son of Late Sugan Chand Jain
2019-01-15
SUJIT NARAYAN PRASAD, SUJIT NARAYAN PRASAD
body2019
DigiLaw.ai
JUDGMENT : This writ petition is filed under Article 227 of the Constitution of India wherein order dated 05.09.2018 passed in Execution Case No.15 of 1989 has been assailed whereby and whereunder the petition filed on 23.05.2017 (Annexure-6) seeking therein to consider by the Executing Court the order passed by the District Judge dated 23.09.2011 and 12.04.2016. 2. The case of the petitioner in brief as per the pleadings made in the writ petition is that a suit has been instituted in the year 1983 being T.S. No.52 of 1983 by one Peer Mohammad, the predecessor in interest for a declaration as to which of the two claimants i.e. State of Bihar being defendant 1st Set or sons of Sugan Chand Jain being defendant 2nd Set are entitled to receive dues from the plaintiffs where the respondents have filed on eviction suit being Suit No.04 of 1988. 3. Suit has been decreed on contest in favour of respondent which has been assailed by the judgment debtor in first appeal being First Appeal No.05 of 1989 wherein the decree passed in T.S. No.52 of 1983 has been affirmed against which second appeal has been preferred being Second Appeal No.140 of 2005 which has also been dismissed by judgment dated 25.07.2008 against which special leave petition has been preferred being S.L.P. No.4605 of 2009 which has also been dismissed on 01.05.2009. 4. The decree holder has filed an execution case being Execution Case No.15 of 1989 for execution of decree passed in T.S. No.52 of 1983. 5. The judgment debtor has filed application in Execution Case No.15 of 1989 on 13.07.2011 under the provisions of Section 340 of Cr.P.C. seeking therein prayer to hold inquiry against the decree holder and for commission of some fraud and in consequence thereof, lodged a complaint against him but the same has been rejected vide order dated 18.07.2011.
5. The judgment debtor has filed application in Execution Case No.15 of 1989 on 13.07.2011 under the provisions of Section 340 of Cr.P.C. seeking therein prayer to hold inquiry against the decree holder and for commission of some fraud and in consequence thereof, lodged a complaint against him but the same has been rejected vide order dated 18.07.2011. Some of the objector being aggrieved with the same, has filed an appeal being Criminal Appeal No.146 of 2011 before the District Judge, thereafter approached to this Court in W.P.(C) No.563 of 2015 wherein this Court has declined to interfere with the order passed on an application filed under Order XXI Rule 97, 99 and 101 subject matter of the same was to allow amendment in the schedule of the suit property as reflected in the plaint, the same has been rejected which has been declined to interfere with, however, with an observation that the executing court is well within its power and jurisdiction to execute the decree in question to its satisfaction and in that exercise it is always open to the executing court to verify the identify of the holding numbers from all such original records relating to it and from the long standing survey map of the village in question. 6. The petitioner thereafter has filed an application on 23.05.2017 before the Executing Court to consider the order dated 12.04.2016 passed by the District Judge, the same has been rejected against which the instant writ petition has been filed invoking the revisional jurisdiction conferred under Article 227 of the Constitution of India. 7. Learned counsel for the petitioner while assailing the aforesaid order has submitted by referring to the provision of Order XXI Rule 35 that under the aforesaid provision the delivery of the immovable property, possession shall be delivered to the party to whom it has been adjudged, since the description of property has not specifically been mentioned in the plaint, therefore, the executing court is to consider the details of the property before delivering possession of the aforesaid property in order to execute the decree in its letter and spirit. 8.
8. Having heard the learned counsel for the parties and going across the pleadings made in the affidavit as also the impugned order from which it transpires that a suit was preferred for being inter-pleader suit being T.S. No.52 of 1983 for a declaration as to which of the two claimants i.e. State of Bihar or the son of Sugan Chand Jain are entitled to receive dues from the plaintiffs. 9. Subsequently, eviction suit being Eviction Suit No.04 of 1988, both the suits have been contested by the parties and in terms of the judgment dated 31.03.1989 inter-pleader suit being T.S. No.52 of 1983 was dismissed and the eviction suit including Eviction Suit No.04 of 1988 has been decreed. 10. The decree passed in Eviction Suit No.04 of 1988 was put in execution from Execution Case No.15 of 1989. The judgment debtor thereafter has approached the jurisdiction of First Appellate Court, Second Appellate Court and the Hon'ble Apex Court being First Appeal No.05 of 1989 and Second Appeal No.140 of 2005 and S.L.P. No.4605 of 2009 respectively, but all the Courts have declined to interfere with the decree. 11. The petitioner much subsequent thereafter has filed one application on 23.09.2011 said to have been filed under the provisions of Section 340 of Cr.P.C. making therein allegation of commission of fraud upon the judgment debtor. 12. On 23.09.2011, an order was passed directing the Court below to dispose of the writ petition under Section 340 of Cr.P.C. afresh against which the objector/intervener moved before the District Judge who has disposed of the same on 12.04.2016 by passing the following order :- “having given considerable thought to the entire gamut of facts, legal provisions and the submissions made this court is of the considered opinion that the learned executing court is well within its power and jurisdiction to execute the decree in question to is satisfaction and in that exercise it is always open to the learned executing court to verify the identity of the holding numbers from all such originals records relating to it and from the long standing survey map of the village in question.” 13.
Another set of objector/intervener filed W.P.(C) No.563 of 2015 which has been disposed of by the co-ordinate Bench of this Court vide order dated 12.04.2016 along with analogous writ petitions whereby and whereunder this Court has declined to interfere in an order passed by the trial Court under Order XXI Rule 97, 99 and 101 read with Section 151 of C.P.C. in Execution Case No.16/1989, 17/1989, 18/1989 and 20/1989. 14. This Court before declining to interfere has made an observation to the effect that the executing court is well within its power and jurisdiction to execute the decree in question to its satisfaction and in that exercise it is always open to the executing court to verify the identity of the holding numbers from all such original records relating to it and from the long standing survey map of the village in question. 15. The petitioner thereafter has filed an application on 23.05.2017 for rectification in the details of the suit, the same has been rejected, this writ petition has been filed. 16. It is evident from the materials available on record that this Court has already made an observation in W.P.(C) No.563 of 2015 which was disposed of on 12.04.2016 clarifying the jurisdiction and power of the executing court is a matter pertaining to the subject matter of the instant execution case but even thereafter the application has been filed for making rectification in the details of the suit property. 17. It is in the considered view of this Court that when the High Court sitting under Article 227 of the Constitution of India has already made an observation clarifying the position regarding the power and jurisdiction of the executing court wherein it has specifically been observed that the executing court can well verify from the details of the land, there was no occasion for the petitioner to file afresh application for making rectification in the decree, that too when the decree passed has been affirmed up to the level of Hon'ble Supreme Court. 18. The trial court after taking into consideration the fact that the execution case is pending since 1989 thereafter has rejected the application dated 23.05.2017 so that the decree passed may be executed. 19. Therefore, the trial Court has committed no illegality warranting this Court to exercise its supervisory jurisdiction conferred under Article 227 of the Constitution of India. 20.
18. The trial court after taking into consideration the fact that the execution case is pending since 1989 thereafter has rejected the application dated 23.05.2017 so that the decree passed may be executed. 19. Therefore, the trial Court has committed no illegality warranting this Court to exercise its supervisory jurisdiction conferred under Article 227 of the Constitution of India. 20. In view thereof, the writ petition fails and stands dismissed.