Calcutta High Court (Appellete Side)
Sakila Begum Jamadar & Ors vs Sri Sudhir Ghorui & Anr on 5 June, 2017
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IN THE HIGH COURT AT CALCUTTA
05-06-2017Civil Revisional Jurisdiction Subrata . C.O.No.946 of 2016 Sakila Begum Jamadar & Ors.
-vs-
Sri Sudhir Ghorui & Anr.
None ...for the petitioners
Mr. Subhas Chandra Karar
Mr. Sanat Kumar Roy
Mr. Baidurya Ghosh ...for the opposite parties
Though none appears on behalf of the petitioners, Mr Karar assisted by Mr Roy and Mr Ghosh represents the opposite parties.
The impugned order dated December 19, 2015 passed by learned Civil Judge (Jr. Division), 1st Court at Serampore in Title Execution Case No.412 of 2014 (re- numbered from Title Execution Case No.7 of 2009) allowing the application under Order 21 Rule 32 of the Code of Civil Procedure filed by the opposite parties- decree-holder-plaintiffs of the original suit since has been challenged, the CO is taken up for hearing and disposal at the instance of learned counsel for the opposite parties on merit. Perused the materials on record.
Let a copy of the application filed under Order 21 Rule 32 read with section 151 CPC submitted by Mr Karar be taken on record for future reference.
Upon hearing Mr Karar and on the face of the 2 materials on record, it appears that the opposite parties- plaintiffs got an ex-parte decree in the suit for declaration and permanent injunction in Title Suit No.140 of 2001 against the absentee petitioners-judgment-debtors- defendants. Since it was alleged that the petitioners had done some overt-acts violating the decree of permanent injunction by raising illegal construction inside the decretal property, the application under Order 21 Rule 32 CPC had to be filed by the opposite parties.
Learned executing court in Title Execution Case No.412 of 2014 observed, inter alia, as follows:-
"Although the petitioner/Dhr has not been able to show that the same has been constructed by the O.P/Jdr himself, however, in consideration of the fact that the O.P./Jdr has knowledge of this misc case and inspite thereof the O.P./Jdr has not turned up to contest the same, this court is inclined to hold adversely that the O.P./Jdr is at fault."
Upon above observations learned executing court allowed the application under Order 21 Rule 32 CPC filed by the decree-holder ordering as follows:-
"O.P./Jdr is hereby directed to immediately demolish the alleged illegal constructions made by them inside the 'Ka' scheduled property as described in the rough sketch map of the Inspection Commissioner Report [Exhibit - 3] within 30 days of knowledge of this order. In default, the petitioner/Dhr is directed to take proper steps for initiating proceedings for civil imprisonment of the O.P./Jdr.
Nazir is directed to depute a process server for the purpose of intimating the O.P./Jdr of this order at the earliest. Inform the Nazir accordingly.
To 30.01.2016 for awaiting report of compliance of this order."
During course of hearing Mr Karar produced certified copy of the decree drawn after passing ex parte order in the suit. It appears that no such map was made part of the decree specifying the decretal property. It 3 appears from the order impugned that direction was given by learned executing court based on the rough sketch map of the commissioner's report lying with the record after local inspection which is palpably illegal and perverse since "the rough sketch map of the inspector report" are the words added beyond the decree in question.
Upon rough sketch map, not drawn to scale or the same being not a part of decree, decree is not desirable to be executed. For that purpose learned executing court ought to have relied upon any local investigation report, had there been if any, done by any appointed survey- knowing commissioner.
It is needless to mention that the executing court cannot go behind the decree. However, since there was a valid decree delivered by a civil court of competent jurisdiction in favour of the opposite parties, then it is the bounden duty of the executing court to lend legal assistance whatever is only permissible under the Code of Civil Procedure. During execution of any decree of permanent injunction the executing court must be satisfied about the identity of the property on which the purported decree of permanent injunction is supposed to be executed. If in the judgment and decree passed in the suit there is no such specification about identity of the property butted and bounded by four boundaries upon which the decree of permanent injunction was passed, then the instant matter pertaining to the execution may be altogether on a different cause of action. Otherwise, if there is no dispute or there is acceptance by the executing 4 court to the very identity of the decretal property where the decree of permanent injunction is to be executed, in that event learned executing court is free to render all legal assistance as is permissible under law. But in any sense learned executing court must not rely upon "rough sketch map of the inspection commissioner's report" which is not a part of the decree to pass an order for execution under Order 21 Rule 32 of the Code.
However, since the opposite party is in occupation of a valid decree of declaration and permanent injunction, liberty is given to the opposite parties-decree-holders- plaintiffs to approach learned executing court afresh by attaching sketch map drawn to scale, if it was ever drawn by way of survey knowing advocate-commissioner during local investigation, or in otherwise situation, learned executing court, in the process of executing the decree of permanent injunction, may be at liberty to take all incidental care and precaution so that during execution of such decree the decretal property could have been identified beyond any dispute; otherwise implementation of decree of permanent injunction would not be possible, since the decretal property, as also described in the schedule of plaint, is unspecified.
Upon such observations the order dated December 19, 2015 passed by learned executing court in Title Execution Case No.412 (re-numbered as Title Executing Case No.7 of 2009) is set aside, since the execution was directed on the basis of rough sketch map which is not found as part of the decree passed by learned trial court.
5Therefore, though the petitioners are not represented but examining the order impugned and upon hearing learned counsel for the opposite parties, CO No.946 of 2016 is allowed on merit. However, liberty is given to the petitioners-decree-holder to approach learned executing court for execution of the decree of permanent injunction, provided the court pursuant to the terms of the decree is satisfied about the identity of the decretal property with reference to its plot number, area and location, or if learned executing court be able to necessary record order invoking inherent power under section 151 CPC for engaging survey knowing commissioner at the cost of the decree-holder for identification of the decretal property so that the decree of injunction may be implemented.
No order as to costs.
Certified photostat copy of this order, if applied for, shall be given to the parties.
[Mir Dara Sheko, J] 6