Calcutta High Court (Appellete Side)
Sri Chandipada Batabyal & Ors vs Sri Dipak Chandra Dey @ Dipak Dey & Ors on 27 February, 2019
Author: Biswajit Basu
Bench: Biswajit Basu
1 (17) 27.02.2019
(p.j.) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION CO No. 2944 of 2017 Sri Chandipada Batabyal & ors.
-versus-
Sri Dipak Chandra Dey @ Dipak Dey & ors.
Mr. Jiban Ratan Chatterjee, Mr. Mihir Kumar Das, ... for the petitioners.
Mr. Kallol Basu, Mr.Syed Chandan Hossain, ... for the opposite parties.
The predecessor-in-interest of the petitioners filed a suit for declaration of title and injunction being Title Suit No. 39 of 1972 before the learned 3rd Court of Munsif at undivided Medinipur.
The said suit was decreed by declaring the right, title and interest of the plaintiff over the suit property and also restraining the defendants by a decree of injunction from interfering and disturbing the peaceful possession of the plaintiff over the suit land.
The defendants being aggrieved by and dissatisfied with the said decree preferred an appeal being Title Appeal No. 137 of 1977 which was disposed of by the judgment and decree dated April 19, 1979 by modifying the decree of the learned Trial Judge in the following manner:-
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"The appeal be allowed on contest in part. The judgment and decree of the Court below is modified. Plaintiffs right, title and interest in the Kha schedule land covered by the area shown within A2, B, B1, B2 and portion of Ka schedule land within A, A1, A2 and A3 having an area of .0037 acre/ in R. S. plot no. 7/220 be declared. Defendants are restrained from interfering with the peaceful possession of the plaintiff in those lands. The report of the Pleader Commissioner along with his field book and map be made part of the decree."
The plaintiff put the decree passed in the suit into execution which gives rise to Title Execution Case No. 8 of 1982.
The judgment debtors/opposite parties raised objection to the executability of the decree under execution by filing the an application under Section 47 of the Code of Civil Procedure on the ground that the decree holders instead of putting decree as modified in appeal, have put the decree passed in the suit into execution.
The decree holders in the said execution case also filed an application under Order 21 Rule 32 of the Code for enforcement of the decree under execution by attachment of the properties of the judgment debtors and by putting them in civil prison.
The learned Executing Court by the Order No. 204 dated September 19, 2005 dismissed the objection filed by the judgment debtors under Section 47 of the Code and allowed the application filed by the decree holders with costs of Rs. 1000/-.
The judgment debtors assailed the said order in C.O. No. 240 of 2006. The said revisional application was disposed of by the learned Single Judge with the following observations:-
"In my view, the decree-holders cannot be permitted to execute the decree which was passed by the learned Trial Judge after the same was modified by the learned 3 Appellate Court. The decree-holders at best can execute the decree as modified by the learned Appeal Court and such execution can be continued after amendment is carried out in this application for execution by describing the decreetal property in conformity with the decree of the learned Appellate Court.
Mr. Sahoo, however, submitted that his clients have no intention to obstruct the implementation of the decree as modified by the learned Appellate Court. Mr. Sahoo further submitted that because of the confusion created due to failure on the part of the decree-holders to amend the description of the decreetal property in the execution petition, certain unpleasant incidents took place. Mr. Sahoo, however, assured this Court that if the decree-holders seek to implement the decree passed by the Appeal Court, his clients will not obstruct implementation of the said decree.
Considering the said submission of Mr. Sahoo, this Court feels that an opportunity should be given to the judgment-debtors/petitioners for respecting the assurance given by them through their learned Advocate as indicated above regarding the implementation of the said decree passed by the learned Appeal Court, before executing the order impugned by way of attachment of the judgment-debtors' property or by way of their arrest and/or civil imprisonment.
Under such circumstances, this Court directs the learned Executing Court to appoint a Survey-passed Advocate Commissioner, so that the decree-holders may rise fencing around the decreetal property on identification of the decreetal property as per the Appeal Court's decree, by the learned Advocate Commissioner with reference to the Commissioner's report which was made a part of the decree.4
It is also made clear that in the event any obstruction is raised by the judgment- debtors at the time of raising such fencing around the decreetal property by the decree- holders and/or repairing the rooms within the decreetal property, the decree-holders may seek necessary assistance from the Officer-in-Charge of the local police station and in the event such obstruction is reported to the Officer-in-Charge of the local police station either by the decree-holders or by the learned Advocate Commissioner, the Officer-in-Charge of the local police station will render all necessary help to the decree-holders for enabling the decree-holders to raise fencing around the decreetal property and/or to repair the rooms within the decreetal property in implementation of the decree as passed by the learned Appeal Court on 19th April, 1979 in Title Appeal no. 137 of 1977.
The decree-holders, however, are permitted to take steps for amending the execution petition to bring the decreetal property on record in conformity with the decree of the learned Appellate Court and if such step is taken by the decree-holders/opposite parties, the learned Executing Court will permit the decree-holders/opposite parties to carry out such amendment".
In terms of the aforesaid order of this Court, the learned Trial Judge appointed an advocate commissioner but the learned Trial Judge could not ascertain the real picture of the decreetal land as such directed the parties to apply for fresh investigation commission.
On perusal of the order impugned it appears that the decree holders have not yet availed the opportunity granted to them by this Court vide order dated August 24, 2007 passed in C.O. No. 240 of 2006 to amend the execution petition.
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The amendment of the execution petition is absolutely necessary in view of the fact that the decree passed in the suit has been modified in appeal from the said decree but the decree holders have put the decree passed in the suit into execution.
The decree holders, therefore, granted further opportunity to carry out necessary amendments in the execution petition.
The amendment of the execution petition, in the manner as indicated above after being carried out the parties are at liberty to apply before the learned Trial Judge for appointment of an investigation commissioner for identification of the decreetal land.
The learned Trial Judge being so approached by either of the parties shall appoint an investigation commissioner to identify the decreetal land. The learned Trial Judge on receipt of the report of the said investigation commissioner shall consider the same and if is satisfied that the said report properly identifies the decreetal land shall permit the decree holders to raise fencing around the decreetal property and/or to repair the rooms within the decreetal property under the supervision of the said investigation commissioner.
It is reiterated, as observed in the order dated August 24, 2007 passed in said C.O. No. 240 of 2006 that in the event any obstruction is raised by the judgment debtors at the time of raising fencing around the decreetal property by the decree holders and/or repairing the rooms within the decreetal property, the decree holder may seek necessary assistance from the Officer- in-Charge of the local police station and in the event such obstruction is reported to the officer- in-charge of the local Police station either by the decree holders or by the investigation commissioner, the said Officer-in-Charge shall render all necessary help to the decree holders enabling the decree holders to raise the said fencing and/or to repair the said rooms.
The costs of the investigation commission shall be borne by the parties equally. 6 The learned Trial Judge shall make the endeavor to complete the whole exercise within a reasonable time and in doing so shall not entertain any prayer of the parties for adjournment unless it is completely unavoidable.
With the above observations, CO 2944 of 2017 is disposed of. No order as to costs. Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.
(Biswajit Basu, J.)