Dewanti Devi And Ors vs Saroj Devi And Ors

Heard learned counsel for the petitioners and learned counsels for the opposite parties.

The petitioners are aggrieved by the impugned order dated 30.1.2018, passed by the learned Sub-Judge-II, Chatra, in Execution Case No. 1 of 2008,

whereby, their application under Section 47 C.P.C., read with Order-XXI, Rule-35 of C.P.C., objecting the execution of the decree, has been

dismissed by the Executing Court.

The petitioners are the judgment debtors, objecting the execution of the decree. Originally the Trial Court had decreed the suit by Judgment and

Decree dated 22.9.1994, passed in Title Suit No. 3 of 1998, declaring that the plaintiffs are entitled for declaration of their right and title over 15.5

decimals of land in Plot Nos. 622 and 623 of Khata No. 34, which they had purchased by dint of two registered deeds of sale dated 4.3.1985 for

construction and nothing more.

In appeal, the Appellate Court, by its Judgment and Decree dated 15.5.2004, passed in Title Appeal No. 56 of 1994, though dismissed the appeal on

contest, but with a modification in the decree, incorporating two decimals of land more, said to be sold by Malti Devi.

At the execution stage, an application was filed under Section 152 of the C.P.C., for amendment in the decree, by the plaintiffs decree holders

before the Appellate Court below, which was allowed by order dated 3.12.2007, passed by the Appellate Court, directing as follows:-

“In the result, the prayer is allowed and after the word “Malti Devi†in the last page of decree the following words as â€" “The

suit of the plaintiff / respondents is decreed on contest with cost and their title in respect of 17½ decimals land from Northern half as

described in Schedule ‘A’ of the plaint is declared and a preliminary decree for partition to the extent of that 17½ decimals land out

of Northern half as described in Schedule-‘A’ is passed in favour of plaintiff / respondents and after separate Takhta thereof to be

carved out through the processes of the Court and, accordingly, the decree is made final†are allowed to be incorporated in the decree.

The office clerk is directed to incorporate in the decree as stated above.

Though the challenge to the aforesaid order of the Appellate Court, by the judgement debtors was unsuccessful before the High Court, but

ultimately, was set aside by the Hon'ble Apex Court by order dated 15.04.2011, passed in S.L.A. (Civil) No. 18989 of 2009, filed by the judgement

debtors.

The execution case was filed for execution of the decree, being Execution Case No. 1 of 2008. The petitioners herein, initially filed their application

objecting the execution of the decree, which was rejected by the Executing Court below, by a reasoned order dated 17.01.2014.

The petitioners thereafter preferred a writ application in this Court, being W.P.(C) No. 749 of 2014, against the order dated 17.01.2014 passed by

the Executing Court, which, upon hearing both the parties, was dismissed by order dated 13.5.2014, finding that the execution proceeding was based

on the decree with respect to only 15.5 decimals of land, which was upheld up to the Apex Court, and not the amended decree, which was set aside

by the Supreme Court. This Court also found that the Executing Court had also taken notice of the same and had clearly mentioned the said fact in the

impugned order dated 17.1.2014.

The petitioners judgment debtors, again approached the Hon’ble Supreme Court, in S.L.P. No. 20224 of 2014, against the order dated

13.5.2014, passed by this Court in W.P.(C) No. 749 of 2014, which was also dismissed by the Hon’ble Apex Court, vide order dated 22.07.2016.

Though learned counsel for the petitioners has submitted that the impugned order dated 30.1.2018, passed by the Executing Court below, cannot

be sustained in the eyes of law, and even the Nazir of the Court, who was given the writ to execute the decree, has expressed difficulty in executing

the decree, but I find that the objections, raised by the petitioners, i.e., the defendant judgment debtors have been rejected up to the Hon’ble Apex

Court, and nothing else remains to be decided by this Court in the present civil revision. Though, in the impugned order dated 30.1.2018, passed in

Execution Case No. 1 of 2008, the Court below has noted some difficulties, pointed out by the Nazir of the Court, in execution of the decree, but it is

only for the Court below to see that such difficulties do not arise in execution of the decree.

I do not find any illegality in the impugned order dated 30.1.2018, passed by the learned Sub-Judge-II, Chatra, in Execution Case No. 1 of 2008,

dismissing the application filed by the petitioner, worth any interference in exercise of the revisional jurisdiction.

There is no merit in this civil revision and the same is, accordingly, dismissed.