Mr. D. Deb vs Mr. Br Bose
2021 Latest Caselaw 325 Tri

                    HIGH COURT OF TRIPURA
                          AGARTALA
                           CRP 29/2020
                               PRESENT
For Petitioner(s)         :      Mr. D. Deb, Advocate
For Respondent(s)         :      Mr. BR Bose, Advocate

         HON'BLE MR. JUSTICE ARINDAM LODH
                       Order
12/03/2021

   Heard Mr. D. Deb, learned counsel for the petitioner who has submitted
that he has filed the amended petition.
   Mr. Deb, learned counsel has challenged the order dated 20.02.2020
challenging the legality and propriety of this order passed by the learned
Civil Judge, Senior Division, Court no.1, West Tripura, Agartala in case No.
Civil Misc. (J) 114 of 2019.
   Facts

in brief are that, the respondents instituted a suit for partition. That partition suit was decreed exparte. There was no application for setting aside the said exparte decree. It is further surfaced that the decree has not been challenged before any superior court. As such, the decree had attained its finality. The respondents herein had filed a petition for executing the decree. Having receipt of the notice, the petitioner of this instant revision petition who was the original defendant had appeared and filed an application under Section 47 of the CPC raising objection against the execution of such decree. The issue of raising objection was that the survey commissioner appointed by the Court while surveying the land went beyond the terms of the decree. Having heard both the parties, the learned Executing Court rejected the plea of the judgment-debtor- petitioner and the application under Section 47 CPC stood dismissed. The said order in detail discussed the objection raised by the present petitioner eventually rejecting the same and accepting the report of the survey commissioner which resulted in drawn up of final decree. For deciding the revision petition, in my opinion, some extracts of the order may be reproduced, for convenience:

"(i) Admittedly, the petitioner neither took any step to set-aside the ex- parte preliminary decree nor preferred any appeal or revision against the decree passed or the order accepting the survey commissioner's report.

(ii) At first, it appears that the present petitioner has no objection against the preliminary decree as in para No. 4, it is stated that the survey commissioner without following the preliminary decree has prepared his report which got accepted.

(iii) In fact during hearing, Ld Counsel has only raised the issue that the report of the survey commission is not as per the preliminary decree and it should be outright rejected. The argument on behalf of the petitioner only revolved around the report of the survey commissioner. xxxxxx

(iv) This court has also considered that the commissioner has mentioned some plots to be in possession of others.

(v) This court on the said order has considered the above objection and rejected the same giving reasons.

(vi) Hence, being an executing court , I find no scope at this stage to re- consider those objections which were already decided in the main suit.

(vii) Now, comes the only remaining point that all the legal heirs or co- sharers are not made party to the suit.

(viii) In answer to this it is found that the preliminary decree was passed ex-parte against the present petitioner who initially appeared in the main suit and thereafter altogether remained absent.

(ix) However, passing of preliminary decree was very much within the knowledge of the present petitioner as during preparation of final decree he take (sic) part in the proceeding by filing written objection.

(x) Hence, , it surfaces that though it was within the knowledge of the petitioner, he did not prefer any appeal against the preliminary decree neither took any step for vacating of ex-parte order"

The learned Executing Court, in my opinion, has correctly interpreted the judgment of the Apex Court in Rafique Bibi (Dead) by Lrs. Vs. Sayed Waliuddin (Dead) by Lrs. And others reported in (2004) 1 SCC 287, wherein the Apex court held as under:

''6. What is 'void' has to be clearly understood. A decree can be said to be without jurisdiction, and hence a nullity, if the Court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in nullity. The lack of jurisdiction in the Court passing the decree must be patent on its face in order to enable the executing Court to take cognizance of such nulity based on want of jurisdiction; else the normal rule that an executing Court cannot go behind the decree must prevail".

The view of the learned Executing Court that the above position of law makes it clear that only when the decree is null and void, the objection under Section 47 CPC can be raised. Moreover, the Executing Court cannot revisit the merits of the suit like the appellate court. Having viewed so, I find no merit in the instant revision petition. Accordingly, the instant revision petition stands dismissed. Pending application(s), if any, also stands disposed of.

JUDGE

Saikat