Jharkhand High Court
Somnath Majumdar vs The State Of Jharkhand & Ors on 22 November, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 294 of 2021
Somnath Majumdar .... .. ... Petitioner(s)
Versus
The State of Jharkhand & Ors. .. ... ...Opp. Party(s)
...........
CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
.........
For the Petitioner(s) : Mr. Sandeep Verma, Advocate
For the Opp. Party(s)/State : Mr. Praveen Akhouri, SC-I
Mrs. Mohini Gupta, AC to SC-I
......
03/ 22.11.2022. Learned counsel for the petitioner is permitted to remove the
defects, as pointed out by the office in course of the day.
2. The instant CMP has been filed for quashing of the order dated
19.08.2017 passed by learned Civil Judge, Senior Division-II, Dhanbad in
Misc. Case No.23 of 2016 [arising out of Execution Case No.86 of 2014 as
contained in Annexure-6].
3. It is submitted by learned counsel appearing on behalf of the
petitioner that petitioner is the plaintiff of Title Suit No.135 of 2000 which
has been decreed in his favour and has attained its finality.
4. The said suit was filed inter-alia for the following relief(s) :-
"For a decree in favour of the plaintiffs and against the defendants for
confirmation of possession of the plaintiffs by declaring their title over the
land mentioned in Schedule 'B' below. Alternatively, if the plaintiffs are
dispossessed during the pendency of the suit for recovery of possession of
the land mentioned in the Schedule 'B' below of the plaint."
5. In view of the prayer, ad-valorem court fee of Rs.380/-was also paid.
In the operative part of the judgment, the suit of the plaintiffs has been
decreed on contest, but without cost. The decree was prepared and signed on
19.03.2009 in which the relief, as prayed for has been decreed including the
recovery of possession.
6. It is submitted that the judgment-debtor filed a petition in Execution
Case No.86 of 2014 [Misc. Case No.23 of 2016] wherein an objection was
raised by the judgment-debtor that there was no direction in the decree to
deliver the possession. The impugned order has been passed holding that
there was no decree for recovery of possession and it was merely declaratory
in nature.
7. It is further submitted that this observation was beyond the record, as
it will be apparent from the judgment and decree passed by the learned court
below the relief of recovery of possession had been decreed by the learned
Trial Court. The learned court below instead of executing the judgment and
decree had entered into the scrutiny of the issues that were framed and
decided by the trial Court. Such an approach was impermissible and the
order passed by the learned court below was ex-facie and not in consonance
with the judgment and decree passed by the learned trial court.
8. The executing Court has no jurisdiction to go behind decree. Even in a
case where the declaration of title is given but in the absence of prayer for
recovery of possession is not decreed, the plaintiff cannot be asked to file
another suit for recovery of possession. It has been held in Smt Abha
Agarwal Vs Smt Chanpati Devi 2019(3) PLJR 1058 wherein title suit,
decree was passed in favour of decree-holder and his right title and interest
was declared. There was no prayer for restoration of possession if the
plaintiff was not found in possession it was held that decree-holder can not
be asked to file a separate suit for recovery of possession when civil court
declared want of title of Judgment debtor. However the decree-holder has to
pay the proper court fee before order of delivery of possession is issued by
executing Court.
9. Having heard learned counsel for the petitioner, executing court
appears to have gone behind the decree and the impugned order is
accordingly set aside and the learned court below is directed to pass order
afresh in Misc. Case No.23 of 2016 after hearing the parties within a month
from the date of production/ receipt of a copy of this order.
10. The said Execution Case is arising out of Title Suit of the year 2000
and more than 20 years have already elapsed. The execution proceeding be
concluded within three months with intimation to this Court.
The instant CMP stands disposed of.
(Gautam Kumar Choudhary, J.)
Sandeep/
