Orissa High Court
CMP/699/2020 on 25 January, 2021
C.M.P. No.699 of 2020
02. 25.01.2021 Due to outbreak of COVID-19, this matter is taken
up through Video Conferencing.
Heard Mr. P.K. Rath, learned counsel for the
petitioner.
This CMP has been filed assailing the order dated
26.02.2020 (Annexure-1) passed by learned Senior Civil
Judge, Bhadrak in C.M.A. No.583 of 2019 (arising out of
Execution Case No.12 of 2011), whereby he rejected an
application under Section 47 C.P.C.
Mr. Rath, learned counsel for the petitioner submits
that Civil Suit No.108 of 2005-I was filed for partition in
which the father of the petitioner was the defendant. The
suit was preliminarily decreed vide judgment dated
22.10.2009 by learned Civil Judge (Senior Division),
Bhadrak. Since no amicable partition could be made,
final decree proceeding was initiated. The decree was
made final on 29.06.2011 (Annexure-6). Thereafter,
Execution Case No.12 of 2011 was initiated. During
pendency of the execution case, the father of the
petitioner breathed his last. But, the executing court
proceeded with the matter without issuing any notice to
the petitioner. It is his submission that when the opposite
party proceeded to take over forcible possession of his
residential house pursuant to the final decree, he came to
know about the pendency of the execution case and filed
an application under Section 47 C.P.C. The said
application was rejected on the ground that the executing
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court cannot go behind the decree. Mr. Rath, learned
counsel for the petitioner relying upon the decision of the
Hon'ble Supreme Court in the case of Bhavan Vaja and
others -v- Solanki Hanuji Khodaji Mansang and
another; reported in (1973) 2 SCC 40 submits that the
executing court has legal obligation to find out the true
effect of the decree by looking at the pleadings to find out
the meaning of the words employed in the decree itself.
He placed reliance on the paragraph-20 of Bhavan Vaja
and others (supra), which reads as follows:-
"20. It is true that an executing court cannot go behind
the decree under execution. But that does not mean
that it has no duty to find out the true effect of that
decree. For construing a decree it can and in
appropriate cases, it ought to take into consideration
the pleadings as well as the proceedings leading up to
the decree. In order to find out the meaning of the
words employed in a decree the Court, often has to
ascertain the circumstances under which those words
came to be used. That is the plain duty of the execution
Court and if that Court fails to discharge that duty it
has plainly failed to exercise the jurisdiction vested in
it. Evidently the execution court in this case thought
that its jurisdiction began and ended with merely
looking at the decree as it was finally drafted. Despite
the fact that the pleadings as well as the earlier
judgments rendered by the Board as well as by the
appellate court had been placed before it, the execution
Court does not appear to have considered those
documents. If one reads the order of that Court, it is
clear that it failed to construe the decree though it
purported to have construed the decree. In its order
there is no reference to the documents to which we
have made reference earlier. It appears to have been
unduly influenced by the words of the decree under
execution. The appellate court fell into the same error.
When the matter was taken up in revision to the High
Court, the High Court declined to go into the question of
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the construction of the decree on the ground that a
wrong construction of a decree merely raises a question
of law and it involves no question of jurisdiction to
bring the case within Section 115, Civil Procedure
Code. As seen earlier in this case the executing Court
and the appellate court had not construed the decree at
all. They had not even referred to the relevant
documents. They had merely gone by the words used
in the decree under execution. It is clear that they had
failed to construe the decree. Their omission to construe
the decree is really an omission to exercise the
jurisdiction vested in them."
In that view of the matter, he submits that the order
impugned herein is not sustainable.
It is his submission that assailing the preliminary
decree, RFA No.50 of 2017 has been filed, which is
pending before learned District Judge, Bhadrak. The sole
contention of Mr. Rath, learned counsel for the petitioner
is that during the final decree proceeding, the possession
of the parties should have been respected by the civil
court commissioner in terms of the direction in the
preliminary decree. But, that having not been done, the
petitioner is going to be evicted from the residential
house. He, therefore, submits that the impugned order is
not sustainable and is liable to be set aside.
Taking into consideration the submission made by
Mr. Rath, learned counsel for the petitioner and on
perusal of the record, it appears that the preliminary
decree was passed with the following order:
"The suit be and the same is preliminarily
decreed on contest against the defendant, but without
cost. The plaintiff and the defendant each is entitled to
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half shares over the suit properties. The parties are
directed to effect partition of the suit properties
according to their shares allotted by an amicable
partition within two months hence, failing which any
of them may take recourse to law in which event the
Civil Court Commissioner will be deputed to curve out
the share of the respective parties taking into
consideration the possession of the parties."
Thus, it appears that possession of the parties
should be taken into consideration while effecting
delivery of possession. The petitioner had filed an
application under Section 47 C.P.C. The contention of Mr.
Rath, learned counsel for the petitioner is that the
petitioner was not given an opportunity of hearing in the
execution case and the execution case proceeded against
his father, who is dead by now without respecting his
possession over the suit land.
The contention raised in this CMP can well be
raised in the first appeal itself, which is pending before
learned District Judge, Bhadrak and can be looked into
effectively with reference to the materials on record. That
may not be a ground to entertain an application under
Section 47 C.P.C. Be that as it may, since the petitioner
has an opportunity to raise all the issues raised herein,
in the Appellate Court in R.F.A. No.50 of 2017 pending
before learned District Judge, Bhadrak, I refrain myself
from recording any finding on the same.
It is open to the petitioner to raise all such
questions before the Appellate Court and also to pray for
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stay of further proceeding of the execution case, if so
advised and in that event, the same shall be considered
in accordance with law.
With the aforesaid observation, this CMP is
disposed of.
It is made clear that this Court has not expressed
any opinion on the merits of the case of the petitioner.
The Appellate Court, while entertaining the appeal
as well as any petition to be filed by the petitioner, shall
not be influenced by any finding recorded in the order
under Annexure-1 passed in C.M.A. No.583 of 2019
(arising out of Execution Case No.12 of 2011).
Authenticated copy of this order downloaded from
the website of this Court shall be treated at par with
certified copy in the manner prescribed in this Court's
Notice No.4587 dated 25.03.2020.
................................
K.R. MOHAPATRA,J.
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