Gauhati High Court
Nabaran Sarkar And Ors. vs Sudhir Chandra Roy And Ors. on 9 February, 2004
Equivalent citations: AIR2005GAU45, AIR 2005 GAUHATI 45, (2004) 2 GAU LT 10
Author: I.A. Ansari
Bench: I.A. Ansari
ORDER I.A. Ansari, J.
1. This revision has arisen out of the order, dated 28-8-2003, passed by the learned Civil Judge (Junior Division), Khowai, West Tripura District, in Execution (Title) No. 01 of 2003, dismissing the application made by the judgment-debtors i.e., the revision-petitioners under Section 47 of the Code of Civil Procedure (hereinafter referred to as the "Code") challenging executability of the decree, dated 27-5-2002, passed in Title Suit No. 9 of 2000.
2. Briefly stated, the material facts leading to the present revision may be stated as follows :
(i) In T.S. No. 09/2000 aforementioned, the present revision petitioners were impleaded as defendants. The suit was instituted by the present opposite party, as plaintiffs, seeking, inter alia for declaration of their right, title and interest over the suit property, described in the Schedule to the plaint, and recovery of 'khas' possession by evicting the defendants therefrom. Though the revision petitioners received summons and entered appearance in the suit as defendants, they did not file their written statement, the suit proceeded ex parte and culminating into the ex parte decree passed on 27-5-2002 in terms of the prayers aforementioned by the plaintiffs. When the decree was put to execution in Execution (Title) Case No. 01/2003 aforementioned, the judgment debtors-petitioners filed objection aforementioned contending, inter alia, that the decree was not executable, for, the schedule of the decretal land was not properly identifiable inasmuch as the decretal land is situated on the northern side of Tuichindra Cherra whereas the boundary of the decretal land indicates that it is situated on the northern side of Tuichindrai Cherra. The decree holders opposite party filed their objection to the judgment debtors' application made under Section 47, the case of the decree holder being, in brief, that the suit land was actually situated on the northern side of Tuichindrai Cherra the suit land was correctly described in the plaint and was identifiable and that an objection, such as the one raised by the judgment-debtors in the execution proceeding, ought to have been raised in the suit itself and not in the execution proceeding.
(ii) Upon hearing the learned counsel for the parties, the learned executing Court passed the impugned order.
I have perused the materials on record including the impugned order. I have heard Mr. D. Chakraborty, learned counsel for the petitioners, and Mr. D. C. Roy, learned counsel appearing on behalf of the opposite party.
3. While dealing with this revision, it is of prime importance to note that the revision-petitioners did appear as defendants in the said suit, but they chose not to file any written statement and/or contest the suit. The effect was that the statements made in the plaint and the evidence adduced by the plaintiff remained uncontroverted and undisputed. Situated thus, there can be no escape from the conclusion that the fact that the plaintiffs had laid their claims of declaration of. their rights, title and interest in respect of the land mentioned in the Schedule to the plaint and that this was the land in respect of which the decree was, eventually granted, cannot be disputed. In short, the fact that the suit land was identifiable as per the plaint was not in dispute in the suit and such a dispute cannot be raised, for the first time in executing proceeding by persons, who were defendants in the suit.
4. Coupled with the above, the Court, which granted the decree had, undisputedly, the jurisdiction to decide the suit.
In the face of the facts indicated herein-above, it is abundantly clear that the decree granted in the suit was with jurisdiction and the same could not have been treated as a nullity in the eyes of law. Hence, no case for the decree being inexecutable could be made out by the judgment-debtors-petitioners.
5. Considering, therefore, the matter in its entirety, I am firmly of the view that this revision petition is wholly without merit and the impugned order needs no interference.
In the result and for the foregoing reasons, this revision stands dismissed.
No order as to costs.