Sanjay Kumar Shukla vs Smt. Parwati
2021 Latest Caselaw 2466 Chatt

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                                                                              NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                            WP227 No. 898 of 2019
      Sanjay Kumar Shukla S/o Bhagwati Prasad Shukla Aged About 52
       Years R/o Village of Ringani, Tahsil Dhamdha, District Durg
       Chhattisgarh., District : Durg, Chhattisgarh
                                                                  ---- Petitioner /
                                                               Judgment-debtor
                                    Versus
     1. Smt. Parwati Wd/o Late Rajkumar, R/o Village Urla, Tahsil Patan District
        Durg Chhattisgarh., District : Durg, Chhattisgarh
     2. Smt. Yasoda D/o Late Rajkumar D/o Late Rajkumar, Presently Resident
        of Kolihapur, Gunderdehi, District Durg Chhattisgarh., District : Durg,
        Chhattisgarh
     3. Vijay Shanker S/o Late Rajkumar, R/o Village Urla, Tahsil Patan District
        Durg Chhattisgarh., District : Durg, Chhattisgarh
     4. Ravishanker S/o Late Rajkumar, R/o Village Urla, Tahsil Patan District
        Durg Chhattisgarh., District : Durg, Chhattisgarh
     5. Smt. Asha Wd/o Late Nilkanth @ Lilkant, R/o Village Urla, Tahsil Patan
        District Durg Chhattisgarh., District : Durg, Chhattisgarh
     6. Ku. Damini D/o Late Nilkanth @ Lilkant, R/o Village Urla, Tahsil Patan
        District Durg Chhattisgarh., District : Durg, Chhattisgarh
     7. Rohan S/o Late Nilkanth @ Lilkant, R/o Village Urla, Tahsil Patan
        District Durg Chhattisgarh., District : Durg, Chhattisgarh
     8. Ku. Dimpal D/o Late Nilkanth @ Lilkant, R/o Village Urla, Tahsil Patan
        District Durg Chhattisgarh., District : Durg, Chhattisgarh
     9. Smt. Sharda Bai D/o Ganga Prasad, R/o Village Kurva Tahsil Nawagarh,
        District Bemetara., District : Bemetara, Chhattisgarh ..... (Judgment-
        holders)
     10. Smt. Sheela Yadav D/o Late Birjhanand Yadav, R/o Near Central Jail
         Durg, District Durg Chhattisgarh., District : Durg, Chhattisgarh .....
         (Judgment-bebtor)
     11. Vicky Yadav S/o Late Ajay Yadav, R/o Behind Sharda Talkies, Durg,
         District Durg Chhattisgarh., District : Durg, Chhattisgarh
     12. State Of Chhattisgarh Through Collector          Durg,    District   Durg
         Chhattisgarh., District : Durg, Chhattisgarh
                                                              ----Respondents

For Petitioner - Shri Ravindra Kumar Agrawal, Advocate. For Respondents No.1 to 8 - Shri Avinash Chand Sahu, Advocate. For State/Respondent No.12 - Shri Alok Nigam, Govt. Advocate.

Hon'ble Shri Justice Rajendra Chandra Singh Samant Order on Board 22-09-2021

1. This petition has been brought being aggrieved by the order dated 24-

09-2019 passed by the execution Court, III rd Civil Judge Class-I, Durg (C.G.) in

Execution Case No.08/2017.

2. The plaintiff Rajkumar (deceased), whose LRs. are respondents No.1 to

8, and Sharda - Respondent No.9 had filed a civil suit praying for reliefs of

declaration of title, permanent injunction and possession. Civil Suit No.4A/84

was decreed in their favour. The suit property in that civil suit was Khasra

No.220/59 measuring 2.69 acres situated in Village Devbaloda and Khasra

No.156 measuring 4.30 acres situated in Village Ringani. The defendant

therein Birjhanand, whose legal representative is respondent No.10, preferred

Appeal No.18-A/92 which was dismissed by the appellate Court by judgment

dated 14-09-1994. The Second Appeal No.544/1994 was preferred before the

High Court, and the same was dismissed by order dated 06-02-2008 on the

ground of abatement.

3. It is submitted that the petitioner was not a party in that civil suit or in

appeal. The petitioner had purchased a land from Birjhanand of description

Khasra No.204 measuring 4.22 acres, which is a different land from that of the

suit property. The decree in the civil suit is clearly not against the petitioner

even then the decree holder-respondents have filed execution application on

03-07-2017, in which the petitioner has been arrayed as a party. The petitioner

raised objection by filing application under Section 151 of the CPC, stating that

there is no decree against him, therefore, his name may be deleted from the

execution application. The application was contested by the respondents-

decree holders. The impugned order has been passed, in which it has been

observed by the learned execution Court that the petitioner/judgment-debtor

No.2 has made admission regarding making purchase of some suit land. The

observation made by the learned execution Court is without any basis as no

such admission was ever made by the petitioner in the application under

Section 151 of the CPC or in the arguments submitted before the execution

Court. Therefore, the impugned order suffers from grave infirmity and the

execution case against the petitioner is causing him great harassment. Hence,

it is prayed that the impugned order be set aside and relief be granted to the

petitioner.

4. Learned counsel for the respondents No.1 to 8 opposes the submission

made by learned counsel for the petitioner and submits that the land that the

petitioner had purchased is the suit land. The original khasra number of the suit

land has been renumbered, therefore, the impugned order is sustainable which

requires no interference. Hence, the petition may be dismissed.

5. Learned counsel for the State/respondent No.12 makes formal

objection.

6. In reply, it is submitted by learned counsel for the petitioner that the

application for mutation filed by the respondents-decree holders has been

dismissed by the Additional Tahsildar vide order dated 21-09-2015 (Annexure-

P/6. The appeal preferred before the SDO against that order has also been

dismissed vide order dated 31-03-2017 and the revision before the

Commissioner has also been dismissed by order dated 30-11-2018. The

renumbering of survey numbers of the suit land is a misconception. Therefore,

the petition may be allowed.

7. Heard learned counsel for the parties and perused the documents.

8. Considered on the submissions. Without any doubt, the petitioner had

never been a party in Civil Suit No.4A/84 before the trial Court and in the first

appeal and also in the second appeal. The description of the suit land given in

the judgment and decree dated 14-09-1992 is Khasra No.220/59 measuring

2.69 acres situated in Village Devbaloda and Khasra No.156 measuring 4.30

acres situated in Village Ringani. The property purchased by the petitioner from

the deceased defendant has description of Khasra No.204 measuring 4.22

acres situated in Village Ringani. Dispute has been raised by the respondents-

judgment debtors that the property sold to the petitioner by deceased

defendant Birjhanand is the same property which is mentioned as Khasra

No.156 measuring 4.30 acres. As the identity of the land in the sale deed in

favour of the petitioner and the land described in the judgment and decree is

not matching, in that case the learned executing Court should not have passed

the order cursorily. An enquiry was required to be made for resolving the

dispute present regarding identity of the suit property and regarding the

correctness of the claim made by the respondents-judgment debtors on the

property belonging to the petitioner. Therefore, I am of this view that the

learned executing Court has not passed the impugned order correctly. Hence,

the petition is disposed off at motion stage. The impugned order is set aside.

The application filed by the petitioner under Section 151 of the CPC is

restored. The learned executing Court is directed to make an enquiry on the

question as to whether the land purchased is the suit property as described in

the judgment and decree. It is also directed that a reasoned and appropriate

order be passed on this application by the learned executing Court after giving

opportunity of hearing to both the parties.

9. The petition is disposed off.

Sd/-

(Rajendra Chandra Singh Samant) Judge Aadil