Shri Chitrabhan Singh vs Shri Jagannath Singh
2021 Latest Caselaw 1813 Chatt

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                                                                  NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR

                   Order Reserved on : 02.08.2021

                    Order Passed on :17/08/2021

                      W.P.(227) No. 273 of 2021
Shri Chitrabhan Singh, S/o. Late Chatur Singh, aged about 72 years,
R/o. New Bus Stand Gharghoda, Raigarh, P.S. and Tahsil Gharghoda,
Distt. Raigarh (Chhattisgarh).
                                                          ---- Petitioner
                               Versus
1.    Shri Jagannath Singh, S/o. Late Chatur Singh, aged about 64
      years, R/o. New Bus Stand Gharghoda Raigarh, P.S. and Tehsil
      Gharghoda, Distt.- Raigarh (Chhattisgarh).
2.    Girja, D/o. Narayan Singh, aged about 34 years, R/o.- Pusaur,
      Department Of Mahila Bal Vikas, Pusaur, Distt.- Raigarh
      (Chhattisgarh).
3.    Tarun Kumar, S/o. Narayan Singh, aged about 34 years,
4.    Komal, S/o. Narayan Singh, aged about 30 years,
      No.3 and 4 both are R/o. Village Gharghoda, Raigarh, P.S. and
      Tehsil Gharghoda, Distt.- Raigarh (Chhattisgarh).
5.    Shankar Singh, S/o. Late Chatur Singh, aged about 58 years,
6.    Rameshwari, Wd/o. Raghuraj Singh, aged about 50 years,
      No.5 and 6 both are R/o Village Gharghoda, Raigarh, P.S. and
      Tehsil Gharghoda, Distt.- Raigarh (Chhattisgarh).
7.    Nandini, D/o. Late Raghuraj Singh, aged about 36 years, R/o.
      Balco- Korba, Distt.- Korba, Chhattisgarh.
8.    Yashoda, D/o. Late Raghuraj Singh, aged about 36 years, R/o.
      Village Khaira, Tehsil- Ratanpur, Distt.- Bilaspur (Chhattisgarh).
9.    Jaishree, D/o. Late Raghuraj Singh, aged about 36 years, R/o.
      Near Circuit House, Raigarh, Distt. - Raigarh (Chhattisgarh).
10.   Sunil Singh, S/o. Late Raghuraj Singh, aged about 40 years, (as
      per impugned order), R/o. Vill. and Tahsil - Gharghoda, Distt.
      Raigarh Chhattisgarh.
                                                      ---- Respondents

For Petitioner : Mr. Rajesh Roshan Singh, Advocate

For Respondent No.1 : Mr. Pankaj Singh, Advocate.

Hon'ble Shri Justice Rajendra Chandra Singh Samant C A V Order

1. This petition under Article 227 of the Constitution of India has been

brought being aggrieved by the order dated 31.05.2021, passed

by the Execution Court in Civil Execution Case No.96/2002.

2. The respondent No.1 had filed a Civil Suit No. 96-A/2002, in which

the petitioner was defendant No.8. During the pendency of that

civil suit, the parties settled their dispute and executed an

agreement dated 11.10.2017. It was on that basis, the suit was

decreed by order dated 13.10.2017 by the Court of Civil Judge

Class-I, Gharghoda. Respondent No.1/decree holder has filed an

application for execution of the decree dated 13.10.2017, seeking

possession of the suit land. The petitioner raised objection and

filed application under Section 47 read with Order 21, 97, 98 and

101 of C.P.C., claiming that khasara numbers mentioned in the

execution application are not correct. Subsequent to which W.P.

(227) No. 182 of 2021 was filed by the respondent No.1, which

was disposed off on 24.03.2021 by this Court directing the

execution Court to expedite the proceeding in execution case and

complete the same within a period of three months. It is submitted

that the learned Execution Court has instead of deciding the

application pending under Section 47 read with Order 21, 97, 98

and 101 of C.P.C. ordered for issuance of possession warrant on

31.05.2021.

3. It is submitted that in the further proceeding in the execution case

regarding which, copy of order sheets have been filed, it is reveals

that warrant of possession could not be executed, as the

respondent No.1 was not satisfied with the demarcation of the suit

property. Subsequent to which, the execution proceeding have

been stayed consequent to the order passed by this Court on

10.06.2021 in this petition. Relief is prayed for.

4. Counsel for the respondent opposes the petition and the

submission made in this respect. It is submitted that the

respondent No.1 has been declared entitled for the possession of

the suit land of the description mentioned in the judgment and

decree dated 13.10.2017. After filing of the execution application

and on the petition filed by the respondent No.1 as W.P.(227) No.

182 of 2021, there is specific direction of this Court to dispose of

the execution case within a time frame. The petitioner is adopting

dilatory tactics to deny the rightful claim of the respondent No.1.

The impugned order does not suffer from any infirmity. Reliance

has been placed on the judgment of Supreme Court in case of

Brakewel Automotive Components (India) (P) Ltd. V. P.R.

Selvam Alagappan, reported in (2017) 5 SCC 371, judgment of

Andhra Pradesh High Court in case of Pothuri Thulasidas Vs.

Potru Nageswara Rao, reported in AIR 2005 AP 171, judgment of

High Court of Madras in case of Gnanadurai Vs. Suseelammal,

reported in AIR 1995 Madras 133, in case of Shalini Shyam

Shetty & Anr. Vs. Rajendra Shankar Patil, reported in (2010) 8

SCC 329.

5. In reply, it is submitted by the learned counsel for the petitioners

that the entire dispute present between the parties is regarding the

identification of the land only, therefore, the objection raised by the

petitioner needs a decision by the executing Court.

6. I have heard the learned counsel for the parties and perused the

documents placed on record.

7. Section 47 (1) of the Code of Civil Procedure reads as under :-

"Section 47. Questions to be determined by the Court executing decree. (1) All questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

8. This provision simply mentions that all questions regarding

execution, discharge or satisfaction of the decree are subject to

the determination by the Execution Court, in case any such

objection is filed. Further clarification is given in Rule 101 of Order

21 of C.P.C., which shows that all the question including the

question regarding right, title or interest in the property arising

between the parties to a proceeding on an application under Rule

97 or Rule 99 or their representatives, and relevant to the

adjudication of the application, shall be determined by the Court

dealing with the application, and not by a separate suit.

9. The dispute that has been raised by the petitioner in his

application under Section 47 read with Order 21, 97, 98 and 101

of C.P.C. is that the respondent No.1 has made claim on the basis

of the judgment and decree dated 13.10.2017, the survey

No.455/8/1 and 455/10/1, which is not mentioned in the judgment

and decree and thus the executability of the execution application

has been questioned. Prayer has been made for spot inspection

for the purpose of proper execution of decree.

10. The question regarding the execution of a decree can be raised

under Section 47 and Order 21 Rule 101 of C.P.C., which are

required to be decided first. The objection raised by the petitioner

has relevance, therefore, it has to be decided and answered by

the learned Executing Court, before proceeding with the execution

case. Hence, for this reason, this petition is allowed and disposed

off at motion stage. The proceeding of the trial Court, which has

been initiated by the impugned order are hereby quashed. The

learned execution Court is directed to decide the pending

application filed by the petitioner under Section 47 read with Order

21, 97, 98 and 101 of C.P.C. without being influenced by the

observation made in this order and subsequent to that proceed

with the execution in accordance with the law.

Sd/-

(Rajendra Chandra Singh Samant) Judge

Balram