Calcutta High Court (Appellete Side)
Golam Hossain Sardar vs Md. Nizamuddin & Anr on 13 June, 2023
13.06.2023
Court No. 19
Item no.08
CP
C.O. 1202 of 2023
Golam Hossain Sardar
Vs.
Md. Nizamuddin & anr.
Mr. Pinaki Ranjan Mitra
......for the petitioner.
Mr. Uddipan Banerjee
Mr. Sumanta Sanyal
....for the opposite parties.
The revisional application has been filed
challenging an order passed by the learned Civil
Judge (Junior Division), 2nd Court, Howrah in Misc.
Case No. 104 of 2017. By the order impugned dated
February 17, 2023, the Misc. Case was disposed of
without any orders in favour of the petitioner.
In the Execution Case being Title Execution
No. 62 of 2017, the petitioner filed an application
under Section 47 read with Section 151 of the Code
of Civil Procedure. In Title Appeal No. 57 of 2013, the
learned lower appellate court modified the order of
the learned Trial Judge and decreed the counter
claim to the extent that the opposite
parties/defendants in the suit got a decree for
eviction against the plaintiff/petitioner only in
respect of the property described in the schedule of
the counter claim. The plaintiff was directed to vacate
2
the property described in the counter claim of the
defendant and hand over peaceful possession of the
same to the defendant within 90 days from passing
of the order.
On the basis of the decree of the learned lower
appellate court, Title Execution Case No. 5 of 2013
was withdrawn and Execution Case No. 62 of 2017
was filed. The schedule of the property in the counter
claim which was decreed in favour of the defendants,
is as follows:
"One tile shed room situated within holding
No. 16/1, Danesh Molla Lane, P.S. - Sibpur,
District - Howrah which is butted and bounded
during the course of execution are as follows:-
East: Room of late Ahmed Hossain and late
Belat Hossain;
West: House of Hazi Nasiruddin and house
of Ukil Khan;
North: House of late Jamal Molla;
South: Danesh Molla Lane."
The petitioner filed an application under
Section 47 read with Section 151 of the Code of Civil
Procedure praying for proper determination as to
whether the aforementioned schedule property in the
counter claim, was in existence or not and upon
proper assessment of the exact identity of the
decretal property, the execution case should be
proceeded with. The application was registered as
Misc. Case No. 104 of 2017 and the same was
dismissed. The learned executing court held that the
petitioner was only trying to delay the execution.
3
The learned Court observed that it was a
matter of public policy and a policy of law that there
should be a finality to litigation. Multiplicity of
litigation would not enure to the benefit of the decree
holder and the judgment debtor should not be
encouraged to delay the fruits of a decree.
Accordingly, without addressing the question raised
in Section 47 as to the non existence of the tile shed
room and a ascertainment of the same by
demarcation and identification of the alleged tile shed
structure at Premises No. 16/1, Danesh Molla Lane,
the court held that the decree holder could not be
prevented from executing the decree and the Misc
Case, was liable to be dismissed.
Having perused the order under revision, this
court is of the view that as the contention of the
petitioner was that the decree was inexecutable, the
prayer of the petitioner for identification and
demarcation of the alleged tile shed room at Plot No.
16/1, Danesh Molla Lane ought to have been decided
on merits. The learned court below refrained from
doing so.
Under such circumstances, the order
impugned is set aside. The Misc. Case No. 104 of
2017 shall be heard afresh after obtaining a report
from a learned advocate commissioner.
4
In the matter of Hindustan Petroleum
Corporation Ltd. vs. Ajay Bhatia reported in 2023
(1) ICC 433 (S.C.), the Hon'ble Apex Court held as
follows:-
"50. In Pratibha Singh vs. Shanti Devi
Prasad reported in (2003) (1) ICC (S.C.) 792,
this Court held that when a suit for immovable
property had been decreed but the property not
definitely identified, the defect in the Court
record caused by overlooking of provisions
contained in Order 7 Rule 3 and Order 20 Rule
3 could be cured. The Court which passed the
decree could supply the omission.
Alternatively, exact description of the decretal
property might be ascertained by the Executing
Court, as a question relating to execution,
discharge or satisfaction of decree within the
meaning of Section 47."
In the matter of Gurram Anantha Reddy v.
Katla Sayanna reported in 2015 SCC OnLine Hyd
151 the Hon'ble Court held as follows:-
"20.In Chakka Ranga Rao v. Molla Mustari
Banu, wherein it is held in paragraph Nos. 4 to 6 as
follows:
4. Since it is well known that Executing Court can
look into the plaint for understanding the decree, I
have requested the learned Counsel for the revision
petitioner to produce a certified copy of the plaint.
The learned Counsel produced a certified copy of the
plaint. The averments in the plaint show that the
portion shown as A.B.C.D. and E.F.G.H. in the plan
attached thereto belongs to the plaintiff and that the
portion shown as B.E.G.D. in that plan belongs to
defendant. The case of the respondent (plaintiff) is
that the revision petitioner (defendant) who has
property in between his two plots had, while
constructing his house encroached into the sites
belonging to him, which are shown as A.B.C.D and
E.F.G.H. Unfortunately, the plaint plan does not
contain measurements of the sites belonging to the
parties, but the area of the portions marked as
I.J.K.L. and M.N.O.P therein is shown as 5 Sq. yards
each with rough measurements. It is difficult to
identify those particular portions, because, distances
from the eastern and western boundary of the plots
belonging to the plaintiff, to locate them are not
mentioned in the plaint plan.
5. The Court below was in error in dismissing the
petition on the assumption that the provisions of
Order 26 do not apply to proceedings in executing,
because Order 26 Rule 18-A, clearly lays down that
the provisions of that order also apply to proceedings
in execution of a decree or order.
6. Here I feel it appropriate to refer to the
observations of the Apex Court in Prathiba
Singh v. Shanti Devi Prasad of its judgment reading
...Afterall a successful plaintiff should not be
deprived of the fruits of decree. Resort can be had to
Section 152 or Section 47 CPC depending on the
facts and circumstances of each case - which of the
two provisions would be more appropriate, just and
convenient to invoke. Being an inadvertent error, not
affecting the merits of the case, it may be corrected
under Section 152 CPC by the Court which passed
the decree by supplying the omission. Alternatively,
the exact description of decretal property may be
ascertained by the Executing Court as a question
relating to execution, discharge or satisfaction of
decree within the meaning of Section 47 CPC. A
decree of a competent Court should not, as far as
practicable, be allowed to be defeated on account of
an accidental slip or omission....
In this case, since the dispute is with regard to the
actual area encroached by the defendant, it would be
appropriate to appoint an Advocate Commissioner to
take measurements of the portions shown as A.B.C.D
and E.F.G.H in the plaint plan, with reference to the
title deeds dated 11-8-1977 and 10-4-1980 of the
respondent (plaintiff) and also the title deeds of the
revision petitioner (defendant) under which he
acquired B.E.G.D portion of the plaint plan, with the
help of a qualified Surveyor. If the areas and portions
purchased by the respondent and revision petitioner
are identified, localized and demarcated, the area
encroached by the revision petitioner into the site
belonging to the respondent can easily be known. So
it is just and expedient to appoint a Commissioner as
such appointment serves the interest of justice.
The petitioner shall be at liberty to pray for
appointment of a learned advocate commissioner in
order to make local investigation at his own cost. The
learned executing court shall allow such prayer by
appointing a learned Advocate Commissioner.
The learned advocate commissioner shall
cause identification and demarcation of the tile shed
room as described the counter claim and in respect
of which the decree was obtained by the defendants
in the Misc Appeal.
Upon such identification, and demarcation, a
report shall be prepared and filed before the learned
court below. If the property cannot be demarcated
and identified as a separate property from the pucca
structure standing on 16/1, Danesh Molla Lane as
categorically urged by Mr. Mitra, learned advocate for
the petitioner, then a report of such nature
mentioning such fact shall be filed. Thereafter, the
learned court below shall proceed with the hearing of
the Misc. Case and pass necessary orders, in
accordance with law.
As there is no other order from a superior
forum with regard to the findings of the learned lower
appellate court, the proceedings in the execution
case shall continue upon determination of the above
issue and the decree shall be reached to its finality
upon disposal of Misc. Case No 104 of 2017, strictly
in accordance with law, if the decretal property is
identified.
The application shall be filed by the petitioner
within two weeks from the date.
The learned court below shall appoint the
learned advocate commissioner within a week
thereafter. The learned advocate commissioner upon
notice to the parties, shall conduct the investigation
and file a report in the executing court within a
month from appointment. The Misc. Case No. 104 of
2017 and the entire execution proceeding, thus, shall
be disposed of within two months from date of receipt
of the report.
Non-compliance of this order by the petitioner,
shall permit the learned court below to continue with
the execution.
The revisional application is accordingly
disposed of.
There shall be no order as to costs.
Parties are to act on the server copy of this
order.
(Shampa Sarkar, J.)
