Hasmat Ali @ Kallu vs Dularo Bibi
2022 Latest Caselaw 4558 Jhar

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     C. M. P. No. 530 of 2022
                           -----

1. Hasmat Ali @ Kallu

2. Rahmat Ali

3. Ahmad Ali

4. Most. Afsana Parveen

5. Hasnain Ali

6. Shahid Ali

7. Asia Parveen ... .... Petitioners Versus

1. Dularo Bibi

2. Mustakina Khatoon

3. Khursida Khatoon

4. Mursalina Khatoon

5. Mahmuda Khatoon

6. Md. Sabbir Rabbani

7. Md. Gulzar

8. Md. Noor Alam ... .... Opp. Parties

-----

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

-----

For the Petitioners : Mr. Ramchander Sahu, Advocate For the Opp. Parties :

-----

Oral Order 04 / Dated : 14.11.2022

1. The instant civil misc. petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 06.06.2022 passed by the Civil Judge (Sr. Division)-II, Dhanbad in Misc. Civil Application No. 147 of 2022 (related with Execution Case No. 43 of 2017) whereby and whereunder, the petition filed under Section 47 of C.P.C. has been rejected.

2. Briefly stated in Title (P) Suit No. 57 of 1975 was filed by the Respondents impleading the predecessor-in-interest of the petitioners in the suit as Defendant no. 3. The suit was decreed on 31.03.1979 and Execution Case No. 43 of 2017 was filed arising out of Final Decree No. 01 of 2013.

3. The main ground for assailing the impugned order is that the suit was decreed on 31.03.1979 and the in the light of the preliminary decree, final decree was prepared on 07.03.1990.

4 It is contended that in the final decree Case No. 1/2013 the applicants i.e. defendant nos. 1(a) to 1(g) got allotment of the entire schedule A and B lands which is beyond the preliminary decree.

5. It was under these circumstances that petitioners filed Misc. Application Civil No. 147/2022 arising out of Execution Case no.43/2017 was filed under section 47 of the CPC for dismissing the execution case. The petition has been rejected hence the present civil miscellaneous petition has been filed.

6. The heirs of defendant no. 1 have moved the Court for preparation of final decree for demarcation of their shares in Schedule A and B land after the lapse of 30 years of the preliminary decree. No share was allotted to defendant no.1, and as such unless the preliminary decree is modified the share of his legal heirs and successors cannot be carved out.

7. It also argued the no notice was ever served upon the petitioners on their proper address and as such the petitioners had no knowledge of the Suit and therefore they could not contest the suit.

8. From the averments made on behalf of the petitioner it is evident that Title (Partition) Suit No.57 of 1975 has attained finality.

9. From the perusal of the impugned order it appears that the case of execution is filed with respect to final decree no.1/13 wherein shares of defendant no.1(a) to 1(g) heirs defendant no.1 late Md Hanif is carved out on the basis of the sketch map prepared by survey knowing pleader Commissioner.

10. Once the preliminary decree is not challenged or it has attained its finality the final decree cannot be challenged per se. A court executing a decree cannot go behind the decree. The Court must take the decree as it finds it. It cannot entertain any objection that the decree is incorrect in law or in facts, because until the decree is set aside by an appropriate proceeding in appeal, or in revision, a decree even if erroneous is binding between the parties. Hon'ble the Supreme Court has held in Rahul S. Shah v. Jinendra Kumar Gandhi, (2021) 6 SCC 418 :

42. All courts dealing with suits and execution proceedings shall mandatorily follow the below mentioned directions:

42.8. The court exercising jurisdiction under Section 47 or under Order 21 CPC, must not issue notice on an application of third party claiming rights in a mechanical manner. Further, the court should refrain from entertaining any such application(s) that has already been considered by the court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant.

42.11. Under Section 60 CPC the term "... in name of the judgment-debtor or by another person in trust for him or on his behalf" should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property.

42.12. The executing court must dispose of the execution proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay.

42.13. The executing court may on satisfaction of the fact that it is not possible to execute the decree without police assistance, direct the police station concerned to provide police assistance to such officials who are working towards execution of the decree. Further, in case an offence against the public servant while discharging his duties is brought to the knowledge of the court, the same must be dealt with stringently in accordance with law. In view of the stated position of fact and law, the civil miscellaneous petition is dismissed.

The Executing Court is directed to dispose of the case within three months of the order.

(Gautam Kumar Choudhary, J.) AKT