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2023 DIGILAW 1155 (PAT)

Amir Choudhary @ Amirak Choudhary v. Kiranti Devi

2023-10-10

SANDEEP KUMAR

body2023
Sandeep Kumar, J. – This application has been filed for quashing of the order dated 07.02.2018 passed by learned Sub Judge-I, Hilsa in Execution Case No. 06 of 2013, by which he has dismissed the execution case by holding that it is not maintainable. 2. The facts of this case, as stated in the writ petition, are that the original plaintiff namely, Dhano Devi (predecessor in interest of the petitioners) filed Title Suit No. 95 of 1986 against Hari Charan Choudhary and others (predecessor in interest of the respondents) for declaration of title and confirmation of possession with respect to 10 decimals of land and also for grant of permanent injunction restraining the defendants from interfering in the possession of the plaintiff over the suit land. In the said suit, it was stated by the plaintiff that land measuring 20 decimals situated at Mauza- Islampur Tola Mathpar, P.S.-Islampur, District- Nalanda was Gairmajarua Malik parti land, which was settled by the exlandlord and a Hukumnama was also granted in favour of the original plaintiff. Upon vesting of Jamindari, ex landlord submitted return in the name of the plaintiff and thereafter Jamabandi was created in the name of the plaintiff. In the new survey, purcha was issued in the name of the plaintiff showing three new sub plots but with respect to six decimals of land, the name of one Shyam Mali was wrongly recorded. Thereafter, the plaintiff filed objection. When the consolidation proceeding started, the defendants got their names entered in the certificate with respect to 10 decimals of land out of plaintiffs land measuring 20 decimals. In the said suit, written statement was filed by the defendants (predecessors in interest of the respondents). The Sub Judge-II, Hilsa vide judgment and order dated 11.06.1992 dismissed the aforesaid suit by relying upon the Hukumnama produced by the defendants and the order passed by the Consolidation Officer. Against the aforesaid judgment and order, the original plaintiffs filed Title Appeal No. 49 of 1992, which was allowed vide judgment and order dated 30.01.1996. Against the aforesaid judgment and order of the appellate Court, the original defendants filed Second Appeal No. 69 of 1996, which was dismissed by judgment and order dated 24.09.2013 with cost. Against the aforesaid judgment and order, the original plaintiffs filed Title Appeal No. 49 of 1992, which was allowed vide judgment and order dated 30.01.1996. Against the aforesaid judgment and order of the appellate Court, the original defendants filed Second Appeal No. 69 of 1996, which was dismissed by judgment and order dated 24.09.2013 with cost. Thereafter, the original defendants moved before the Hon’ble Supreme Court against the judgment and order dated 24.09.2013 passed in Second Appeal No.69 of 1996 by way of filing Special Leave to Appeal (C) No.2419 of 2014, which was dismissed vide order dated 08.08.2014. 3. However, in the meantime, the petitioners filed Execution Case no.06 of 2013 for execution of decree of the lower appellate court and second appellate court. The respondents-judgment debtors filed a rejoinder to the said execution case. Thereafter, the petitioners filed a reply to the said rejoinder. By the impugned order dated 07.07.2018 the learned Sub Judge has dismissed the execution case by holding that it is not maintainable. Hence, this petition. 4. Learned senior counsel for the petitioner submits that the Executing Court has committed error in passing the impugned order. He further submits that even a declaratory decree i.e. the decree in which the title of the plaintiff has been declared would be executable otherwise there would be multiplicity of litigations and another suit would have to be filed for recovering possession. 5. Learned counsel for the petitioners has relied upon judgment of Hon’ble Supreme Court in case of Babu Lal vs. M/s Hazari Lal Kishori Lal & Others reported in (1982) 1 SCC 525 ; judgment of Orissa High Court in case of Biswanath vs. Uttara Bewa and Others reported in 1986 SCC OnLine Ori 41. 6. Learned counsel for the judgment debtors/respondents has supported the order of Executing Court and has reiterated their stand that the Execution Case No.06 of 2013 was not maintainable and therefore, it has rightly been dismissed by the Court below. 7. I have considered the submissions of both the parties and also perused the materials available on record. 8. It is not in dispute that the petitioners have succeeded in the Appellate Court and in the Second Appeal as well as before the Hon’ble Supreme Court. 7. I have considered the submissions of both the parties and also perused the materials available on record. 8. It is not in dispute that the petitioners have succeeded in the Appellate Court and in the Second Appeal as well as before the Hon’ble Supreme Court. The order of this Court passed in Second Appeal was affirmed by the Hon’ble Supreme Court vide order dated 08.08.2014 and the execution case has been filed in the year 2013. The case of the respondents-judgment debtors is that as the plaintiffs had not sought any relief for obtaining possession in the suit nor they had ever accepted that they had dispossessed and as such the relief of delivery of possession/recovery of possession over the suit lands cannot be granted to the decree holders whereas, the petitioners have submitted that paragraph 31 of the plaint of the title suit shows that the plaintiffs had sought for declaration of title and confirmation of possession in respect to the suit lands. In case the plaintiffs are found to be dispossessed, the recovery of possession may be granted in their favour. 9. Apart from the above, the prayer for grant of permanent injunction was also made by the plaintiffs. The original plaintiffs have also relied on paragraph 41 of the Judgment of the Lower Appellate Court in Title Appeal No. 49 of 1992 in which it has been specifically mentioned that the defendants are not entitled for any interference in the possession of the plaintiffs over the suit lands, they are also entitled for decree of permanent injunction against the defendants restraining them from making any interference in possession of the plaintiffs/petitioners over the suit lands. The judgment and decree of the original Court/Sub-Judge-I, Hilsa was set aside. 10. At this stage, learned Senior counsel for the petitioners has further argued and submitted that the Executing Court is competent to interpret a decree sought to be executed. The judgment and decree of the original Court/Sub-Judge-I, Hilsa was set aside. 10. At this stage, learned Senior counsel for the petitioners has further argued and submitted that the Executing Court is competent to interpret a decree sought to be executed. For doing so it can refer to the reliefs in the plaint and the discussions in the judgment to ascertain truth of the decree and as the said suit was for declaration of title and confirmation of possession and in the alternative recovery of possession over the suit land which has been granted by a decree passed by the Lower Appellate Court, which has been affirmed till the Hon’ble Supreme Court, the execution application on behalf of the plaintiffs for recovery of possession as they had been dispossessed is maintainable even in absence of a specific direction passed by the Courts in the Appeal or in the second Appeal. The Orrisa High Court in the case of Biswanath vs. Uttara Bewa and Others (supra) has held as under: – “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. 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. 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. Thus there is little scope for this court for interfering in this matter in exercise of its revisional jurisdiction. The view taken by me gains support from the decisions reported in AIR 1972 SC 1371 (Bhavan Vaja vs. Solanki Henuji); AIR 1976 SC 1476 (Mulla Alibhai vs. Madrosai Hakima & Coronation High School) and (1968) 34 Cut LT 228 (Chandra Sekhar Rath vs. Lingaraj Mohapatra).” 11. It seems that the judgment debtors have not been able to accept the fact that they have lost the case till the Hon’ble Supreme Court and they have again challenged the maintainability of the Execution Case No. 06 of 2013 which has been dismissed by the Sub-Judge-I, Hilsa illegally without appreciating the law and without appreciating the judgment which was relied upon by the petitioners. The petitioners have succeeded in the suit, their title was declared and injunction was granted. The prayer of recovery of possession over the suit lands was also there and if the execution case has been filed for executing the decree, which as per the petitioners, is for the recovery of possession the Executing Court can go behind the decree and interpret it so that the petitioners/plaintiffs are not denied the fruit of the decree which is in their favour. 12. In view of the above, this application is allowed. The impugned order dated 07.02.2018 passed by the Sub-Judge-I, Hilsa in Execution Case No. 06 of 2013 is hereby quashed. 13. 12. In view of the above, this application is allowed. The impugned order dated 07.02.2018 passed by the Sub-Judge-I, Hilsa in Execution Case No. 06 of 2013 is hereby quashed. 13. The Sub-Judge, Hilsa is directed to execute the decree and restore the Execution Case No. 06 of 2013 within 15 days of receipt/communication of a copy of this order and file a compliance report to this Court within three weeks of receipt/communication of a copy of this order. 14. The respondent nos. 1 to 8/ judgment debtors are directed to pay cost of Rs. 50,000/- (Rupees Fifty Thousand Only) to the original plaintiff/petitioners within two months from today failing which the plaintiffs/petitioners are at liberty to realize the same through the process of Court.