Jharkhand High Court
Harold Anand Kumar Mundle vs Arbind Kumar on 22 December, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 145 of 2022
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Harold Anand Kumar Mundle .... .... .... Petitioner
Versus
1. Arbind Kumar
2. St. Prasanna CSST .... .... .... Opposite Parties
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Petitioner : Mr. Shubhashis Rasik Soren, Advocate
For the O.P. No.2 : Mr. Vikash Kumar, Advocate
Oral Order
04/ Dated :22.12.2022
Instant petition has been filed by the judgment debtor for setting aside the
order dated 09.01.2020 passed in Misc. Civil Application No.66 of 2019 arising out
of Title Execution Case No.01 of 2018 whereby and whereunder the petition filed
under Section 47 of the Code of Civil Procedure, has been rejected.
2. The opposite party No.1/plaintiff, filed Title Suit No.65 of 2005 for
impleading this petitioner for specific performance of contract. The suit was decreed
in favour of the plaintiff by judgment.
3. Respondent No.1 filed Title Execution Case No. 1/2018 in the Court of
Civil Judge (Senior) Division I, Dumka for execution of the decree which was
registered as Execution Case No.01/2018.
4. The petitioner/defendant No.1 and the respondent No.2/defendant No.2
also filed Civil Appeal No.18 & 20 of 2018 against the judgment and decree passed
in Title Suit No.65 of 2005. The petition under Order XLI Rule 5 by the petitioner
before the Trial Court has been dismissed.
5. The petitioner/judgment debtor filed a petition under Section 47 of the
C.P.C. on behalf of judgment debtor No.1 on the ground that the Schedule property
was not properly identified. Secondly, once the suit had been decreed for specific
performance of contract, there was no reason to decree the suit also for in the
alternative remedy for refund of the advance amount, was also error of record.
Thirdly, decree does not mention in the decree what is the amount to be
paid for execution of the sale deed. In the absence of any such specification, it was
not open to the executing Court to direct the payment of balance sale amount in the
decree.
Lastly, the jurisdiction of the Civil Courts is ousted after initiation of
process of settlement till the publication of record of rights, till the final publication
of record of right.
6. The plaintiff brought the suit for specific performance of contract and in
the alternative for refund of the earnest amount with interest. The Trial Court framed
this as Issue No.IX and recorded a finding that the plaintiff was entitled to specific
performance of agreement dated 02.06.2003 and decreed the suit by Judgment dated
23.02.2018. However, the operative part of the judgment is carelessly worded. Since
the First Appeal is pending, and the 1st Appellate Court has wide jurisdiction to
address the issues raised, it will not be proper for this Court to decide the matter at
this stage. Therefore, I direct that the First Appeal be decided within a period of two
months after winter vacation and in the meantime, the execution proceeding shall
stand stayed. The wordings in the judgment should be sufficient and clear. I also
take this opportunity of observing that the Civil Court should bestow attention while
writing the operative part of any judgment and thereafter when the office frames a
decree, it should be properly verified before signing it.
The Civil Miscellaneous Petition accordingly stands disposed of.
(Gautam Kumar Choudhary, J.)
Anit
