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2019 DIGILAW 281 (GAU)

Hira Bora v. Abdul Latif

2019-03-01

PRASANTA KUMAR DEKA

body2019
JUDGMENT : PRASANTA KUMAR DEKA, J. 1. Heard Mr. S. Dutta, the learned Senior Counsel assisted by Mr. C. Sharma, the learned counsel for the petitioners. Also heard Mr. M. K. Sharma, the learned counsel for the respondents. 2. In this revision petition order dated 14.05.2018 passed by the learned Civil Judge, Lakhimpur at North Lakhimpur in Misc.(J) Case No.17/2015 is under challenge. The present petitioner preferred Title Suit No.02/2011 against the present respondents as the defendants. The suit was for declaration of right, title and interest, recovery of possession and for permanent injunction. The suit was decreed and it was put to execution in Title Execution Case No.02/2014 in the court of learned Civil Judge, Lakhimpur at North Lakhimpur. The decree was satisfied inasmuch as the present respondent No.1 as one of the judgment debtors on his own volition vacated the decreetal property whereafter possession was delivered to the present decree holder/ petitioner by the Nazir of the Executing Court and thereafter, the present decree holder/ petitioner acknowledged the satisfaction of the decree by the Executing Court. The said possession to the decree holder/ petitioner was delivered on 20.06.2014 after evicting the judgment debtors. On 06.06.2015 as alleged by the present decree holder/ petitioner, the judgment debtor more specifically the respondent No.1 forcibly dispossessed the petitioners from the land described in Schedule-A and subsequently during the pendency of the proceeding in Misc.(J) Case No.17/2015 as alleged, on 05.06.2016 the decree holder/petitioner was dispossessed from the Schedule-B decreetal land also and constructed a temporary shed over the land. The matter was informed to the concerned Lilabari Police Station whereafter the judgment debtors/ respondents removed the temporary shed but continued to dispossess the decree holder/ petitioner and as such, on 18.06.2015, the petitioner filed an application under Order XXI Rule 35 read with Rule 97 & 98 of the Code of Civil Procedure (CPC). The parties to the said proceeding which was registered as Misc. (J) Case No.17/2015 adduced their respective evidence. The learned court below relied a decision passed by the Hon'ble Supreme Court in Shew Bux Mohata and another Vs Bengal Breweries Ltd and others, reported in AIR 1961 and held that the said application under Order XXI Rule 35 of the CPC was not maintainable inasmuch as second execution proceeding is not maintainable. 3. Being aggrieved the decree holder/ petitioner is before this Court filing this revision petition. 3. Being aggrieved the decree holder/ petitioner is before this Court filing this revision petition. Mr. Dutta, the learned Senior Counsel submits that the learned court below misdirected itself and swayed away by the decision rendered by the Hon'ble Supreme Court where the facts are totally different then the one pleaded by the present petitioner. It is further submitted that the petitioner is the holder of a decree of permanent injunction against the present respondents and in such a case when the persons against whom the said decree of permanent injunction is binding the affected party need not go for a fresh suit rather his/her relief lies in the Executing Court itself. 4. Mr. Sharma, on the other hand, submits that in fact, the judgment debtors/ respondents are possessing their own land which does not fall within the decreetal land possessed by the decree holder/petitioner. The land under possession of the present judgment debtors/respondents are well demarcated from the land of the decree holder and as such, there is no cause of action for the decree holder/ petitioner in order to move the Executing Court under Order XXI Rule 35 of the CPC. 5. I have considered the submissions made by the learned counsel for the parties. The case law relied by the learned court below is based on totally separate factual matrix insofar as the facts in the present contexts are concerned. Therein it was a case before the Hon'ble Supreme Court that one of the judgment debtors was permitted to remain in possession over a part of the decreetal property with due consent of the decree holder. Subsequent thereto the said decree holder acknowledged the satisfaction of the decree. Later on, there was a dispute between the decree holder and the judgment debtors whereafter the decree holder therein filed an execution petition. In the said context, the Hon'ble Apex Court held that no second execution proceeding lies but here is a case wherein there was no such consensual permission given by the decree holder to the present judgment debtors/respondents to possesses any part of the decreetal land. On vacating the decreetal property by the judgment debtors/ respondents on their own volition, the Civil Nazir alongwith the police personnels delivered possession to the decree holder/petitioner of the decreetal property in the present case in hand. On vacating the decreetal property by the judgment debtors/ respondents on their own volition, the Civil Nazir alongwith the police personnels delivered possession to the decree holder/petitioner of the decreetal property in the present case in hand. Thereafter, the delivery of possession of the decreetal property, the decree holder put his signature acknowledging the satisfaction of the decree. However, the decree of permanent injunction against the judgment debtors/ respondents still binds them and under no circumstances, they can violate the said decree of permanent injunction inasmuch as under Section 35 of the Specific Relief Act, 1963 any decree declaring the right, title and interest under Section 34 of the Specific Relief Act, 1963 binds only the parties to the suit. Admittedly the present judgment debtors/ respondents were party to the suit and as such, the decree of permanent injunction binds the judgment debtors/ respondents. In such a situation, any violation of the said decree of permanent injunction, there is no scope of filing any application under Order XXXIX Rule 1 & 2 or 2(A) of the CPC inasmuch as on the date of violation, there is no suit pending to be decided and under such circumstances, the decree of permanent injunction must have to be executed by the Executing Court. The decree holder/petitioner had rightly approached the Executing Court and it is the duty of the Executing Court to see that decree of permanent injunction shall not remain as a mere paper tiger. Accordingly, the learned court below failed to exercise its jurisdiction and this revision petition merits interference which I accordingly do by setting aside the impugned order dated 14.05.2018 passed by the learned Civil Judge, Lakhimpur at North Lakhimpur in Misc. (J) Case No.17/2014. 6. The parties to the suit shall appear before the Court below on 09.04.2019 whereafter the court below shall decide the dispute raised by the decree holder/petitioner after considering the defence taken by the judgment debtor/ respondents on merit. 7. This revision petition is accordingly disposed of.