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2019 DIGILAW 290 (ORI)

Puspa Sharma v. Kitei Nayak

2019-04-08

A.K.RATH

body2019
JUDGMENT : A.K.Rath, J. This petition challenges the order dated 13.11.2017, passed by the learned Civil Judge, (Senior Division), First Court, Cuttack, in Execution Case No.20 of 2013, whereby and whereunder, learned executing court deferred the hearing of the petition filed by the D.Hr.-petitioner for appointment of a survey knowing commissioner to decide the maintainability of the execution proceeding. 2. This case has a chequered history. Plaintiff-petitioner instituted the Civil Suit no.14 of 2008 for declaration of right, title and interest, recovery of possession, in the event she is dispossessed from the suit property during pendency of the suit and permanent injunction, impleading opposite parties as defendants. The suit was decreed on 06.04.2011. The operating portion of the judgment is extracted hereunder: The right, title, interest of the plaintiff over the suit land is hereby declared, and her possession over the same is hereby confirmed. The defendants, their men, agents or any person claiming through them, are hereby restrained not to enter into the suit land, and not to disturb in the peaceful possession of the plaintiff over the same by way of perpetual injunction. 3. Felt aggrieved, plaintiff filed RFA No.85 of 2011 before the learned District Judge, Cuttack, which was subsequently transferred to the court of leaned 3rd Addl. District Judge, Cuttack and renumbered as RFA No.117 of 2013. Learned appellate court dismissed the appeal holding inter alia that so in neither way it is emerging from the evidence that the plaintiff was not in possession or to have been dispossessed from the suit land at any time during pendency of the suit. 4. RSA No.368 of 2013 filed by her before this Court was withdrawn. While matter stood thus, she levied Execution Case No.20 of 2013 to execute the decree. By order dated 16.7.2015, learned executing court held that there is no impediment to execute the decree. Thereafter she filed an application for deputation of a survey knowing commissioner. But then, learned executing court deferred hearing of the petition to decide the maintainability of the petition. 5. Heard Mr. Banshidhar Baug, learned counsel for the petitioner and Mr. Ganesh Prasad Samal, learned counsel for the opposite party nos.2 to 6. None appears for opposite party no.1 and 7 to 11. 6. Mr. Baug, learned counsel for the petitioner submits that the decree holder levied Execution Case No.20 of 2013, for execution of decree. 5. Heard Mr. Banshidhar Baug, learned counsel for the petitioner and Mr. Ganesh Prasad Samal, learned counsel for the opposite party nos.2 to 6. None appears for opposite party no.1 and 7 to 11. 6. Mr. Baug, learned counsel for the petitioner submits that the decree holder levied Execution Case No.20 of 2013, for execution of decree. She was in possession of the suit property. She filed an application on 16.9.2017 for appointment of a survey knowing commissioner for demarcation of the land, but the learned executing court deferred the same to decide the maintainability of the execution case. He further submits that on 16.7.2015, the executing court came to hold that there is no impediment in issuing delivery of possession, but the subsequent Presiding Officer deferred the matter to decide the maintainability of the execution case. The order dated 16.7.2015 has attained finality. 7. Per contra, Mr. Samal, learned counsel for the opposite party nos.2 to 6 submits that there is no irregularity or infirmity in the order of the executing court. The case has been posted to decide the maintainability of the execution case. The decree is not executable. Petitioner is not prejudiced in any way. 8. Taking a cue from the decisions of the apex Court in the case of Bhavan Vaja and others Vs. Solanki Hanuji Khodaji Mansang and another, (1972) AIR SC 1371 and Mulla Alibhai and others Vrs. Madrasai Hakimia and Coronation High School and others, (1976) AIR SC 1476, this court in Biswanath Vrs. Smt. Uttara Bewa and others, (1988) AIR Orissa 9, speaking through Mr. Justice D. P. Mohapatra (as he then was) in no uncertain terms held: 6. From the decree under execution in the case, it is clear that there is no express direction for delivery of possession of the suit land to the plaintiff. The principle is also well established that ordinarily the executing court cannot go behind the decree. But it is within the competence of the executing court to interpret the decree sought to be executed and for doing so the court can refer to reliefs sought in the plaint and discussion in the judgment to ascertain the true import of the decree. In the present case, as noticed earlier, the plaintiff prayed for declaration of title, confirmation of possession and in the alternative for recovery of possession of the suit land. In the present case, as noticed earlier, the plaintiff prayed for declaration of title, confirmation of possession and in the alternative for recovery of possession of the suit land. She asserted in the plaint that she was in possession of the disputed properties but after the entry in the settlement record of rights in their favour, the defendants were threatening to dispossess her. The suit was tried and disposed of ex parte. Relying on the evidence on record, the court found the plaintiff to be in possession of the property and accordingly passed the decree referred to earlier. Apparently, the court did not feel the necessity to direct recovery of possession in view of its finding that the plaintiff was in possession of the suit properties. Taking these facts and circumstances into consideration, the executing court interpreted the decree to mean that the reliefs sought in the plaint were granted in favour of the plaintiff. One of the reliefs sought, was to direct recovery of possession. Therefore, it cannot be said that the executing court travelled beyond its jurisdiction or committed any illegality in holding the execution case to be maintainable overruling the objection raised by the petitioner. 9. Reverting to the facts of the case and keeping in view the law laid down by this Court in the decision cited supra, this Court finds that the plaintiff instituted the suit for declaration of right, title and interest over the suit property and recovery possession in the event, she is dispossessed from the property during pendency of the suit and permanent injunction. The suit was decreed. But the reason best known to her, she filed first appeal for recovery of possession. Learned appellate court held that plaintiff is in possession of the suit land. Further by order dated 16.7.2015, the executing court held that there is no impediment in issuing delivery of possession as sought by the decree holder in the proceeding. The said order has attained finality. In view of the same, the executing court has travelled beyond its jurisdiction to decide the maintainability of the execution case, more so, when no application was filed to recall the order dated 16.7.2015. 10. The impugned order, if allowed to stand, the same will cause miscarriage of justice. The court below has exercised jurisdiction in a manner not permitted by law and failure of justice has occasioned thereby. 11. 10. The impugned order, if allowed to stand, the same will cause miscarriage of justice. The court below has exercised jurisdiction in a manner not permitted by law and failure of justice has occasioned thereby. 11. In the wake of the aforesaid, the impugned order is quashed. The executing court shall proceed with the case in accordance with law. The petition is allowed. No costs.