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2021 DIGILAW 163 (TRI)

Md. Abdul Sattar v. Md. Maruf Ali

2021-09-16

ARINDAM LODH

body2021
JUDGMENT Heard Mrs. P. Dhar, learned counsel appearing for the petitioner as well as Mr. D.C. Roy, learned counsel appearing for the respondents. 2. Briefly stated, the respondents who were the original plaintiffs of the Title Suit filed for specific performance of contract of the suit land mentioned in the plaint itself. The petitioner before the Trial Court had filed written statement being the defendant. Issues were framed, evidence was recorded and after hearing the arguments, the learned Trial Court had passed the judgment dismissing the suit filed by the plaintiffs. The plaintiff i.e. the respondents herein had preferred first appeal before the Court of learned District Judge. The learned District Judge after hearing the parties reversed the findings of the learned Trial Court and decreed the suit in favour of the plaintiffs for specific performance of contract. 3. The defendant i.e. the petitioner herein being aggrieved had preferred second appeal before this Court. In the second appeal, this Court had affirmed the judgment and decree passed by the learned First Appellate Court. To reiterate, the decree was for specific performance of contract on the basis of the contract entered into between the plaintiffs, the respondents herein and the defendant, i.e., the petitioner of this revision petition. Thereafter, the decree was put to execution before the learned executing Court. The learned executing Court had appointed Survey Commissioner. The petitioner who was the original defendant had filed an objection under Section 47 of the Code of Civil Procedure, 1908. The matter was heard and by order dated 20.02.2019, learned Civil Judge, Junior Division Kailashahar had dismissed the objection filed by the defendant, the petitioner of this revision petition, as the learned Judge did not find any reasonable ground for raising objection against the execution of the decree in connection with the case bearing No. Ex(T) 02 of 2017. 4. Being aggrieved, the petitioner has filed the present revision petition challenging the impugned order dated 20.02.2019 passed in Civil Misc.09 of 2017 arising out Ex(T) 02 of 2017. 5. Mrs. Dhar, learned counsel appearing on behalf of the petitioner has submitted that the Court had passed a decree for the performance of contract as per the contract dated 05.12.2005. Mrs. Being aggrieved, the petitioner has filed the present revision petition challenging the impugned order dated 20.02.2019 passed in Civil Misc.09 of 2017 arising out Ex(T) 02 of 2017. 5. Mrs. Dhar, learned counsel appearing on behalf of the petitioner has submitted that the Court had passed a decree for the performance of contract as per the contract dated 05.12.2005. Mrs. Dhar, learned counsel has tried to persuade this Court that the decree is not executable because of variations in mentioning the boundary of the suit land and the plot numbers under khatian No.188 in the contract. Mrs. Dhar, learned counsel for the petitioner contended that the decree was passed in connection with the land mentioned under khatian No.188, but the khatian number relating to the land in question was mentioned as 953 in the schedule of the plaint. In view of these variations regarding mentioning of khatian number and thereof, the plot number does not tally with the boundary mentioned in the plaint. 6. Having considered the submissions of the learned counsel appearing for the parties, I am of the opinion that the Court will not enter into this question afresh because the issue raised by the petitioner has already been settled by the Civil Court. As such, I do not find any ground to interfere with the impugned order dated 20.02.2019 passed by the learned Civil Judge, Junior Division in connection with Case No. Civil Misc. 09 of 2017. Needless to say, if the land under contract between the parties to the lis, is not identified accurately, the Survey Commissioner shall submit his report in accordance with the law. 7. Accordingly, the instant revision petition stands disposed in the above terms.