Most. Dewanti Devi vs Smt. Saroj Devi
2024 Latest Caselaw 1563 Jhar

Jharkhand High Court

Most. Dewanti Devi vs Smt. Saroj Devi on 16 February, 2024

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

                                 1


       IN THE HIGH COURT OF JHARKHAND AT RANCHI

                        C.M.P. No. 968 of 2022
                                 ---------

1. Most. Dewanti Devi, aged about 72 years, d/o Bhola Ram, w/o Late Kedar Singh, Resident of Village-Simri, P.O. and P.S. Dumaria, District- Gaya (Bihar).

2. Sonamati Devi, aged about 69 years, w/o Ramdeo Ram, resident of Village-Nawkadih, P.O. Pipra, P.S. Dumaria, District Gaya (Bihar).

3. Lalmanti Devi, aged about 66 years, w/o Rajendra Ram, resident of Village-Doodhpaniya, P.O. Pipra, P.S. Dumaria, District Gaya (Bihar).

4. Manorama Devi, aged about 60 years, w/o Dilip Singh, Resident of Village Karmaun, P.O. and P.S. Maigra, District Gaya (Bihar).

5. Nirmala Devi, aged abut 57 years, w/o Prameshwar Ram, resident of Village Tonatand, P.O. and P.S. Itkhori, District Chatra (Jharkhand).

6. Bijay Ram, aged about 63 years, s/o Bhola Ram, resident of Village Pratappur, P.O. and P.S. Pratappur, District Chatra (Jharkhand).

....... Judgment Debtors/Petitioners Versus

1. Smt. Saroj Devi, w/o Surendra Sharma.

2. Surendra Sharma, s/o Late Ramanand Sharma Both resident of Village-Pratappur, P.O. and P.S. Pratappur, District Chatra (Jharkhand).

3. Smt. Malti Devi, w/o Late Chamari Ram, w/o Shambhu Ram,

4. Rajesh Ram s/o Chamari Ram

5. Ram Rati Devi W/o Balram Mistry Sl. Nos. 3, 4 and 5 are resident of village - Pratappur, P.O. and P.S. Pratappur, District Chatra (Jharkhand).

... ... Decree Holders/Opp. Parties

---------

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

----------

For the Petitioner : Mr. Ajit Kumar, Sr. Advocate Mr. Satish Kumar Keshri, Advocate For the Respondents : Mr. Amar Kumar Sinha, Advocate Mr. Sandeep Verma, Advocate

-----------

th 06/Dated: 16 February, 2024

1. The instant civil misc. petition has been filed under Article 227 of the Constitution of India against the order dated 16.11.2022 passed in Misc. Civil Appeal No. 137 of 2022 corresponding to CNR No.JHCH02- 0002422022 arising out of Execution Case No.01/2008 whereby and whereunder, the petition dated 10.06.2022 filed by the judgment

debtors/petitioners to review/recall of the order dated 12.05.2022 passed in Execution Case No.01 of 2008.

2. The brief facts of the case as per the pleading made in the petition which requires to be enumerated, read as under:

A deed of partition was settled on 11.03.1970 with regard to the suit land.

The learned Executive Magistrate, in a proceeding initiated in a Case No.35 of 1985 under Section 145 of Cr.P.C. relating to the land in dispute declared the exclusive possession of the suit land by the judgment debtor and even the revision petition was dropped by the High Court as devoid of any merit on 12.05.1987. Thereafter, vide order dated 22.06.1987 passed in Cr. Rev. No.87 of 1987(R) by the High Court, liberty was given to the decree holder to ventilate the grievance before the civil court.

Title Suit No.3 of 1988 was filed by the plaintiff/decree holder/respondent nos.1 and 2 for declaration of 17.5 decimals of land out of 51 decimal of land of village-Pratappur, P.S. Pratappur, Dist. Hazaribagh in Khata No.34, Plot No.622 and 623. Thereafter, decree holder amended plaint in addition to the earlier plaint on 05.09.1988 for the same relief. The judgment debtor/petitioners have filed a written statement in Title Suit No.3 of 1988.

The learned court, vide judgment dated 22.09.1994 passed in Title Suit No.3 of 1988, decreed the suit in favour of the plaintiff/decree holder/respondent nos.1 and 2, the plaintiff/decree holder/respondent nos. 1 and 2 are entitled for declaration of their right and title over 15.5 decimals of land of Plot no.622 and 623 of Khata No.34.

Thereafter, judgment debtor filed a Title Appeal No.56 of 1994 against the judgment dated 22.09.1994 and decree dated 05.10.1994 passed in Title Suit No.3 of 1988, which was dismissed vide order dated 15.05.2004. Thereafter, second appeal being Second Appeal No.329 of 2004 was filed by the judgment debtor/petitioners before the High Court against the judgment dated 15.05.2004 and decree dated 31.05.2004, which was dismissed vide order dated 21.05.2009.

The decree holder filed a writ for carving out takhta in Title Suit No.3 of 1988. The decree holder again filed modified writ/amendment writ on 05.05.2007 and thereafter, Pleader Commissioner submitted a report along with sketch map on 19.06.2007. On 03.10.2007, the decree holder has filed a petition u/s 152 of C.P.C. for amendment of judgment/decree before the first appellate court in Title Appeal No.56 of 1994.

The learned court allowed the petition dated 03.10.2007 on 03.12.2007 without giving opportunity to the judgment debtor/petitioners to file objection and the first appellate court has amended the judgment dated 15.05.2004 and decree dated 31.05.2004 of area 17.5 acres of land.

The judgment debtor filed review petition under Section 151 of CPC against the order dated 13.12.2007 which was rejected by the first appellate court and vide order dated 14.03.2008, office was directed to take steps for preparation of final decree in terms of the procedure under the law. Thereafter, decree was prepared on 31.05.2004 and re-prepared as amended one on 13.12.2007.

On 23.07.2008, the decree holder filed an Execution Case No.1 of 2008. The judgment debtor filed a misc. case u/s 47 of CPC which was dismissed on 20.06.2009.

The judgment debtor filed SLP (C) No. 18989 of 2009 before the Hon'ble Apex Court against the order dated 21.05.2009 passed in Second Appeal No.329 of 2004 in which status quo was passed vide order dated 13.08.2009. The said Civil Appeal No.3266 of 2011 [arising out of SLP

(c) No.18989 of 2009] was allowed and granted leave in favour of the judgment debtor by setting aside the order passed by the High Court and the order passed in Title Appeal No.56 of 1994.

The decree holder filed a review petition being Civil Review No.1743 of 2011 in Civil Appeal No. 3266 of 2011 which was dismissed vide order dated 10.08.2011.

Thereafter, the Executing Court passed an order on 17.01.2014 to execute 15.5 decimals of land.

The judgment debtor/petitioners have filed W.P.(C) No. 749 of 2014 before this Court against the order dated 17.01.2014 passed by the learned court which stood dismissed vide order dated 13.05.2014.

Being aggrieved, the judgment debtor filed SLP No.20224 of 2014 before the Hon'ble Apex Court which was dismissed on 12.07.2016.

Vide order dated 29.08.2016 passed in Execution Case No.1 of 2008, the learned court directed the to execute the decree and submit a report to the court. The Nazir, Police Force, Magistrate and Pleader Commissioner visited the spot and submitted a report dated 27.05.2017 in Execution Case No.01 of 2008 before the learned Sub-Judge-II, Chatra stating that in both the sale deeds having no boundary and not specific area of plot are mentioned in the sale deed and also shows that western side shows common boundary in both the sale deeds dated 04.03.1985.

The judgment debtor/petitioners filed a Civil Revision No.14 of 2018 before this Court against the order dated 30.01.2018 passed in Execution Case No.1 of 2018 whereby the application u/s 47 CPC r/w Order 21 Rule 35 of CPC objecting the execution of the decree has been dismissed by the Executing Court. But, the civil revision stood dismissed vide order dated 17.01.2020.

The judgment debtor filed a petition on 10.06.2022 u/o XLVII Rule 1 r/w Section 114 along with Section 151 of CPC being Mis. Civil Appeal No. 137 of 2022 for review/recall of the order dated 12.05.2022 passed in Execution Case No.1 of 2008 and for preparation of an unamended decree in the light of the order dated 15.04.2011 passed by the Hon'ble Apex Court in Civil Appeal No. 3266 of 2011, order passed in W.P.(C) No. 749 of 2014; order passed by this Court vide order dated 12.07.2016, passed in SLP No. 20224 of 2014, passed by the Hon'ble Apex Court and the order dated 10.01.2020, 17.01.2020 passed in Civil Revision No.14 of 2018 passed by this Court and further for direction of appointment of Pleader Commissioner for fresh survey.

The learned court, Chatra dismissed the said petition dated 10.06.2022 vide order dated 16.11.2022 and further directed the decree holder to file fresh writ in compliance of the order dated 12.05.2022.

In the aforesaid background, the instant petition has been filed.

3. It is evident from the factual aspect as referred above that Original Decree dated 22-09-94, was passed declaring the plaintiffs to the rightful owner and having title of 15.5 decimal, plot no. 622 & 623.

The Title Appeal No. 56/94 preferred by the judgment debtors against the decree dated 22-09-94 was also dismissed on 15-05- 2004 with a modification relating to its finding regarding 2 decimal in addition.

Second Appeal No. 329 of 2004 preferred by the judgment debtors/ petitioners before this Hon'ble Court, which was also dismissed upholding the decree passed by the learned court below.

SLP Civil No. 18989 of 2009 was preferred by the judgment debtor and the Hon'ble Apex Court vide its order and judgment dated 15- 04-2011 set aside the impugned order of the Hon'ble High Court as well as the order of learned 1st Addl. District Judge, Chatra, dated 03-12- 2007 in the petition filed u/s 152 of C.P.C., passed in Title Appeal No. 56/1994.

Thus, the modified decree to the extent of 2 decimal as well as title in respect of 17.5 decimal land from northern half as described in Schedule-A of the plaint is declared and preliminary decree for partition to the extent of that 17.5 decimal of land out of northern half as described in Schedule-A passed in favour of the plaintiff/ decree holder was set aside. Even then the Review Petition No. 1743 of 2011 preferred by the decree holder was also dismissed. In the subsequent proceeding preferred by the judgment debtor before the Hon'ble Supreme Court being S.L.P. Civil No. 20224 of 2014, and the same was dismissed. As such, the only issue is with regard to the demarcation and execution of the decree with regard to 15.5 decimal of land without touching the area of northern half of Schedule-'A' property.

4. This Court requires to refer herein that the instant petition is under Article 227 of the Constitution of India which has got very limited jurisdiction to interfere with the impugned order and the jurisdiction is to interfere with the same if there is error apparent on the face of the order. Reference in this regard be made to the judgment rendered by the

Hon'ble Apex Court in Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to laid down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon'ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193, wherein it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limitless power which may be exercised at the court's discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Court's power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner.

5. The power of superintendence is not to be exercised unless there has been; (a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or (b) gross abuse of jurisdiction; or (c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals.

6. Further, in the aforesaid judgment the Hon'ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141 wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to.

7. The Hon'ble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts.

8. Further, the judgment rendered by the Hon'ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be

restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice.

9. This Court is dealing with the issue in the instant petition filed under Article 227 of the Constitution of India the issue of execution of decree passed in Partition Suit being Title (Partition) Suit No. 3 of 1988.

10. The law is well settled that in the matter of execution, the decree is to be executed as per the decree. The executing court has got no power to deviate from the decree passed. Here, in the instant case, the decree in the title partition suit has been affirmed up to the level of Hon'ble Apex Court.

11. Further issue of correction made in the schedule so far as the area of the property in question is concerned has been extended from 15.50 to 17.50 decimals under Section 152 of the CPC. But the said order has been quashed and set aside by the order passed in the civil revision and affirmed to the level of the Hon'ble Apex Court on the ground Section 152 of CPC cannot be exercise in making substantial correction in the decree rather the power conferred therein is to correct the clerical mistake only. The execution case was filed during pendency of the aforesaid lis at the time when the area of the schedule property was enhanced from 15.50 to 17.50 decimals but the decree has been confined only to 15.50 decimals and hence, the execution case is for executing the decree with respect to only 15.50 decimals of land.

12. During pendency of the execution case, one petition under Section 47 of CPC was filed making objection with respect to the execution of decree based upon the ground that the decree cannot be executed of 15.50 decimals of land but the learned court vide order dated 16.11.2022 has dismissed the said petition filed under Section 47 of CPC.

13. The petitioner being aggrieved, had approached this Court by filing writ petition under Article 227 of the Constitution of India being W.P.(C) No 749 of 2014 which has also been dismissed by passing the following direction:

"I have heard learned counsel for the parties and considered the facts and material on record. On perusal of the impugned order, I find that the executing court is proceeding for execution of final decree passed in Title (Partition) Suit no.3 of 1988 and upheld upto the Apex Court only in respect of 15.5 decimals of land and not the amended decree, as the

order of amendment was set aside by the Supreme court. Learned executing court has taken notice of the same and has clearly mentioned the said fact in the impugned order dated 17.01.2014. The objection filed by the petitioners-defendants was heard and considered but no valid ground was found in their objection.

In view of the above, I find no merit in the writ petition as well as the prayer for interim stay of execution proceeding. The writ petition as well as I.A. no.964 of 2014 are, accordingly, dismissed."

14. The execution thereafter has proceeded and again the petition under Section 47 of the CPC has been filed now taking altogether different stand that a fresh map is to be prepared before executing the decree.

15. The aforesaid petition was duly been contested by the defendant by filing rejoinder. The learned executing court has dismissed the said petition filed under Section 47 vide order dated 16.11.2022, which is under challenge in this petition invoking the jurisdiction conferred under Article 227 of the Constitution of India.

16. It is, thus, evident that the decision of not allowing the decree to be executed is also in the writ petition being W.P.(C) No. 749 of 2014 which was decided on 13.05.2014 but again the similar petition has been filed under Section 47 of CPC now on the different grounds.

17. Learned counsel for the petitioner has not disputed that so far as executing the decree is concerned, the same is to be executed with respect to 15.50 decimals of land but the contention is that a fresh map is to be prepared.

18. The learned executing court has discarded the aforesaid submission on the ground that once the decree has been passed then there cannot be any fresh consideration that too when the aforesaid decree has attained its finality.

19. Further the similar issue has been raised by filing same petition under Section 47 of CPC wherein also the said petition had been rejected and hence, again filing the said petition on different ground cannot be said to be just and proper approach.

20. This Court, is of the view that while passing such order the learned court cannot be said to have committed any fault reason being that the execution of decree is of the partition suit of the year 1988 and even after lapse of 36 years the decree is still not executed, meaning thereby, the defendants have been deprived from the fruits of the said decree.

21. The law is well settled by the Hon'ble Apex Court in the case of Rahul S. Shah vs. Jinendra Kumar Gandhi and Ors., (2021) 6 SCC 418 that the decree is to be executed within a period of six months and while extending the period, the concerned court is required to pass reasoned order justifying the period which is to be extended beyond the period of six months. Reference of relevant paragraph of the said judgment is required to be made which reads as under:

"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."

22. This Court, on the basis of the aforesaid general direction of the Hon'ble Apex Court in the case of Rahul S. Shah vs. Jinendra Kumar Gandhi and Ors. (supra), is of the view by taking into consideration the factual aspect of the instant case that the plaintiff on one pretext or the other, even though decree has attained finality, is filing petition of similar nature invoking the similar jurisdiction as provided under CPC.

23. Therefore, this Court is of the view that the writ petitioner is only trying to procrastinate the execution of decree which cannot be said to be proper for the reason that the decree passed on 05.10.1994 is still to be executed so as to get the fruits thereof by the defendant and further it is in violation of the judgment passed by the Hon'ble Apex Court in Rahul S. Shah vs. Jinendra Kumar Gandhi and Ors. (supra).

24. As such, this Court is of the view that the instant petition is fit to be dismissed since it is not coming under the parameter of the power to be exercised under Article 227 of the Constitution of India since there is no error on the face of it.

25. Accordingly, the instant petition stands dismissed.

26. Further this Court is of the view that the similar petition has been filed which has already been dealt with by this Court in the year 2014 by passing order dated 13.05.2014, therefore, filing the present petition is abuse of the process of judicial proceeding.

27. Therefore, it is a fit case where the exemplary cost of Rs.25,000/- is to be imposed upon the petitioner, to be paid in the Army Welfare Fund.

28. The said amount is to be deposited within two months from the date of receipt of copy of this order.

29. The learned executing court will ensure compliance of the payment of cost to the Army Welfare Fund.

(Sujit Narayan Prasad, J.) Saurabh/-