Gauhati High Court
Rameswar Bora & 3 Ors vs Md. Mannaf Ali & Ors on 24 May, 2016
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(CIVIL REVISIONAL JURISDICTION)
CRP No.156 of 2012
Sri Rameswar Bora and 3 others
... ... ... Petitioners
-Versus-
Md. Mannaf Ali and 8 others.
... ... ... Opposite parties.
BEFORE
HON'BLE MR. JUSTICE N. CHAUDHURY
For the petitioner s : Mr. A. C. Sarma, Advocate.
For the Opp. Parties : Mr. T. Islam, Advocate.
Date of hearing : 24.05.2016.
Date of Judgment : 24.05.2016.
JUDGMENT & ORDER (Oral)
1.The order dated 29.02.2012 passed by learned Munsiff No.1, Morigaon in M.J. Case No.2/2012 arising out of Title Execution Case No.5/2003 has been called in question by the judgment debtor.
2. By filing an application before the learned Executing Court on 19.01.2012 the judgment debtor stated that in course of execution of decree the decree holder was given possession of excess land Page 1 of 5 amounting to 6 Lechas 126 sq. ft. According to the judgment debtor, an application was filed even before execution was made under Order XXVI Rule 18A of the Code of Civil Procedure for appointing of survey commissioner to measure and demarcate the decretal land by metes and bounds. That application was kept pending observing that the application can be considered even if the writ comes back along with report. Thus the application filed under Order XXVI Rule 18 A CPC remained pending when the execution was made. Now that an application was filed purportedly under Section 151 of the CPC making allegation that excess land was given to the plaintiff to the extent of 6 lechas 126 sq. ft., the learned Executing Court ought to have considered the same in terms of the provision of Section 47 of the CPC and to find out the correctness of the allegations made. Without doing so the learned Executing Court considered Nazir's report and the report of the Lot Mondal and thereupon held that there was nothing to decide further and accordingly the application was rejected. This order has been called in question in the present application under Article 227 of the Constitution of India.
3. I have heard Mr. A. C. Sarma, learned counsel for the petitioners and Mr. T. Islam, learned counsel for the opposite parties.
4. Mr. A. C. Sarma, learned counsel for the petitioners, has placed reliance on a judgment of this Court passed in Bhaskar Saikia vs. Tatari Devi and others, reported in 2012(4) GLR 422 wherein an identical Page 2 of 5 question came up for consideration before this Court. Even in that case after the execution the judgment debtor alleged of dispossession from excess land. He filed an application under Section 47 of the CPC but the learned trial Court closed the same holding that since the execution proceeding had been over there was no question of entertaining any further application under Section 47 of the CPC. This Court in the case of Bhaskar Saikia (supra) considered the earlier judgment of the Hon'ble Supreme Court in the case of Merla Ramanna vs. Nallaparaju [AIR 1956 SC 87] and the case of M.P.Shreevastava v. Ms. Veena, [AIR 1967 SC 1193] and thereupon arrived at the view that an application under Section 47 of the CPC can be filed even after disposal of the execution proceeding if it is found that the execution was made excess than decreed. The aforesaid judgment in the case of Bhaskar Saikia (supra) is squarely applicable in the present case. Paragraph 18 of the judgment in Bhaskar Saikia (supra) is quoted below for ready reference:-
"18. In the backdrop of the facts and position of law, as indicated above, there can be no doubt that the order, dated 1.2.2007, cannot be allowed to survive inasmuch as the learned executing Court has rejected the application, made by the judgment-debtors under section 47, CPC, on the ground that the execution proceeding is over and cannot be reopened, because the court has recorded its satisfaction of the decree. This view of the learned executing court is, if I may reiterate, erroneous and cannot be sustained inasmuch as when the judgment-debtors Page 3 of 5 have alleged delivery of possession to the decree holders of land, in excess of the decree granted, by contending that the decree-holders have been given possession of, in addition to the land covered by the decree, land covered by Dag Nos.225 and 227, which were not covered by the subject-matter of the suit, the learned executing Court is, in law, obliged to hear the parties on the judgment-debtors' said application and, then, pass appropriate order(s) on the basis of the conclusion(s), which it may reach after hearing the parties."
5. Although the petitioner herein filed the application before the learned trial court under Section 151 of the CPC but the same was an application under Section 47 of the Code for all intents and purposes. An application has to be decided on the basis of the contents contained in it and not by the cause title or the name given to it. Even wrong quoting of a section may not disentitle a party if he is otherwise entitled to the relief. The learned trial court ought to have considered the application under Section 151 of the Code as an application under Section 47 of the CPC and thereupon was required to enquire into the matter as to whether allegation of the judgment debtor of being dispossessed from excess land is correct or not. If the decree holder has taken more than the decretal land, in that event, he is liable to report the same to the judgment debtor and this can be ascertained only after a survey commission is appointed and other evidence is led to show that excess land has been given to the decree holder. The learned Executing Court did not hold any enquiry and thus fell in Page 4 of 5 jurisdictional error. The application, accordingly, is liable to be allowed. It is accordingly allowed. The impugned order dated 29.02.2012 is hereby set aside.
6. The learned trial Court shall consider the application filed by the petitioner on 19.01.2012 as an application under Section 47 of the CPC and thereafter shall held an enquiry to find out the correctness or otherwise of the allegation. If necessary the learned Executing Court shall be at liberty to appoint survey commission. The parties may also be given adequate opportunity to lead further evidence to prove their respective contentions.
The revision petition stands allowed. No order as to cost. Send down the LCR.
JUDGE T U Choudhury dhury Page 5 of 5