Tripura High Court
Sri Jitendra Chandra Barman vs Shri Dipal Chandra Das on 2 August, 2024
Page 1 of 3
HIGH COURT OF TRIPURA
AGARTALA
CRP No.68 of 2024
Sri Jitendra Chandra Barman, S/o Lt. Jagabandhu Barman, Resident of
Taxapara, P.O. Taksapara, P.S. Melaghar, Sub-Division- Sonamura, District-
Sepahijala, Tripura, Pin-799103
.........Petitioner(s);
Versus
Shri Dipal Chandra Das, S/o Lt. Surendra Chandra Das, Resident of Taxapara,
P.O. Taksapara, P.S. Melaghar, Sub-Division- Sonamura, District- Sepahijala,
Tripura, Pin-799103
.........Respondent(s)
For Petitioner(s) : Mr. S. Chakraborty, Advocate.
For Respondent(s) : None.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
Order
02/08/2024
Heard Mr. S. Chakraborty, learned counsel for the petitioner.
2. Petitioner is the defendant in Title Suit 24 of 2011. The suit was
decreed in favour of the plaintiff and the first appeal and the regular second
appeal preferred against that have also been dismissed by the learned superior
Courts. During execution, the defendant has preferred a petition under Section
47 of the Civil Procedure Code requesting the Executing Court to decide the
fact of curbing out of the decretal land by making a physical survey. The
learned Executing Court, after noticing the provisions of Section 47, the facts of
the case and decisions rendered by the Apex Court, observed that the judgment-
debtor has approached the District Magistrate & Collector, Sepahijala in respect
of the instant issue in a Revenue Case No.34 of 2018 under Section 95 of the
TLR & LR Act, 1960 which is pending. In those circumstances, the Executing
Court cannot get into new issues raised by one of the parties to the judgment
and decree after it has been affirmed by the learned Appellate and the Second
Appellate Court. Therefore, the prayer was rejected.
3. Learned counsel for the petitioner submits that there is a chance of
miscarriage of justice since 0.04 acre of land has been wrongly curved out by
creation of new plot No.4019 which would lead the decree inexecutable on
ground. Therefore, the learned Executing Court was required to undertake
survey investigation and decide the plea raised under Section 47 of the CPC.
4. I have considered the submission of learned counsel for the
petitioner and taken note of the relevant facts placed from record. I have also
perused the impugned order.
The plea raised by the present petitioner was also raised before the
learned Second Appellate Court in RSA No.27 of 2017 wherein the learned
Court, while dismissing the second appeal, observed that the issue of irregular
curving out of the land was not decided by either of the Courts. The defendant-
appellant shall have a liberty to approach the appropriate authority and if it is
found correct, the appropriate authority may take the decision without having
otherwise due regard to the judgment passed by the Court below. The
judgment-debtor has already approached the District Magistrate & Collector,
Sepahijala, Bishramganj in Revenue Case No.34 of 2018 and that matter is
pending. The Executing Court cannot go beyond the decree. Petitioner was
himself a party in the suit and has to suffer the consequences of the decree. The
Executing Court is therefore right that merely because of pendency of the
Revenue Case No.34 of 2018 before the learned District Magistrate &
Collector, Sepahijala, the execution petition could not be dismissed or kept in
abeyance. This Court feels that the Executing Court is required to proceed for
execution of the decree and depending upon the report of the bailiff; in case
such an issue arises, it may deal with it in accordance with law.
5. With the above observations, the instant petition is disposed of.
Pending application(s), if any, shall also stand disposed of.
(APARESH KUMAR SINGH), CJ
Pijush/
MUNNA SAHA Digitally signed by MUNNA SAHA
Date: 2024.08.16 14:06:32 +05'30'
