Pramila Debbarma (Smti) and Others vs Gitasree Deb Barma (Chakraborty) (Smti) and Others

D. Biswas, J.—This petition u/s 115 of the Code of Civil Procedure, hereinafter referred to as the Code, has been directed against the order dated 11.6.1998 passed by the learned Civil Judge, Senior Division Court No. 1, West Tripura, Agartala in Case No. Misc.(Exe) 79 of 1997 arising out of Title Execution Case No. 1 of 1997 rejecting the petition of the Petitioners u/s 47 of the Code.

Smti. Gitasree Debbarma (Chakraborty) instituted Title Suit No. 43 of 1981 against Sri Nripendra Debbarma, husband of the Petitioner No. 1 Smt. Pramila Debbara for declaration of title and recovery of khas possession and also for permanent injunction in respect of the land described in the schedule to the plaint. The decree passed in the aforesaids it was eventually confirmed by the First Appellate Court in Title Appeal No. 4 of 1988 and also by this High Court in Second Appeal No. 11 of 1989. The execution of the decree was resisted by the Petitioner by filing a petition u/s 47 of the code on the ground that during the pendency of the Second Appeal, Nripendra Debbarma died and although the Petitioners as well as proforma Respondent No. 2 were substitued as his legal heirs, other heirs of Nripendra Debbarma who have been impleaded as proforma Respondent Nos. 3,4 and 5 in this revision petition, were not substituted. It has further been submitted that one of the daughters, nemely, Smt. Chandra Prava Debbarma, is of unsound mind and no step was taken by the decree holder to appoint a guardian adlitem (or natural guardian) to defend her interest. An objection was also raised on the ground that the boundary of the decreetal land is not correct and definite and the area covered by the decree is less than the area in possession of the judgment debtors.

After hearing both the parties, and on examination of the relevant documents, the Executing Court vide impugned order dated 11.6.98 rejected the petition holding, inter alia, that the Executing Court cannot look into the questions raised by the judgment- debtors who are otherwise estopped from agitating the question in view of the provisions of Section 11 of the Code.

There is no dispute to the legal position that when some illegal or material irregularity is committed by the subordinate Court in the matter of exercise of its jurisdiction ushering in some procedural error resulting into miscarriage of justice such errors can be corrected by this Court in exercise of its powers u/s 115 of the Code, in order to invoke the powers under this section, the levisionists have to show that the impugned order has occasioned failure of justice. In the absence of such allegation, a revisional application is liable to fail. In the instant case, it is, therefore, required to be seen whether the learned executing Court has failed to exercise the jurisdiction vested in it u/s 47 of the Code in its correct perspective while passing the impugned order, which if allowed to stand, would occasion failure of justice or cause irreparable injury to the revisionists. It may be made clear here that mere irregularity is not enough to invoke the powers u/s 115 of the Code. It must be shown that such irregularity has resulted in wrong exercise of jurisdiction and consequent failure of justice.

The revisionists have objected to the execution on two grounds. The first objection relates to the non-substitution of all the legal heirs of the deceased Defendant. According to them, curing the pendency of Second Appeal, the Defendant- Appellant Nripendra Debbarma died. The revisionists of this petition were substituted as legal heirs of Nripendra Debbarma. But other legal heirs who have been arrayed as Respondent Nos. 3, 4 and 5 in this revision petition were not substituted. This plea has been rejected by the learned executing Court. I find no error in the exercise of jurisdiction by the lower Court because of the reason that impleading one or two of the legal representatives of deceased Defendant is sufficient enough as they can represent the estate of the deceased. For that reason, a suit or an appeal does not abate. The deceased Defendant Nripendra Debbarma had contested the suit by filing written statement before the trial Court and also before the first appeallate Court. After having lost the battle there, he had preferred the Second Appeal before this Court, during the pendency of Second Appeal, on his death , the revisionists were brought on record and they had continued with the appeal to the exclusion of Respondent Nos. 3, 4 and 5. Since some of the legal representatives were brought on record and they had defended the estate of the deceased defandant, the plea of non-joiner cannot be treated as a valid ground for resisting the execution of the decree. The revisionists are close relatives of the left-out legal representatives and, as such, they were in a better position to point out the lapse during the continuance of the Second Appeal. Having defaulted to do so, they cannot now raise the plea to the disadvantage of the decree holder.

The next ground of objection was on the indentity and area of the decreetal land. It has been pleaded that the decreetal land falls short of one and, a half ganda than the land in the site and, as such , the decree cannot be executed. The description of the suit land given in the schedule to the plaint shows that apart from dag and plot number, the Plaintiff had described the land by boundary also. This description has been reflected in the decree. That being so, the objection raised by the revisionists (judgment debtors ) about the identity of the suit land appears to be false and vexatious and intended to defeat the process of execution of the decree. The difference in area as pointed out will not carry much weight. In view of the specific boundaries indicated in the plaint and there being no objection raised to it at the stage of the trial, the revisionists (judgment debtors) cannot now raise objection on that ground.

My considered opinion in the given circumstances of this case is that the resistence offered by the revisionists have been rightly rejected by the learned executing Court. When there is no failure of justice, the question of interference by this Court in exercise of its power u/s 115 of the Code does not arise. The provision of Section 115 of CPC applies to jurisdiction alone and it is not directed against the conclusion in which the question of jurisdiction is not involved. In the impugned order, although the learned executing Court observed that some of the grounds taken in the objection petition are not to be looked into by the executing Court, yet, the fact remains that he has rejected the prayer on perusal of the case records giving reasons for arrival at such conclusion. Therefore, the ratio laid down in paragraphs 12 and 13 in (1993) 1 GLR 336 will not apply in this case.

My attention has been drawn to the decisions reported in Sultana Begum Vs. Prem Chand Jain, The ratio laid down in the above cases cannot, in my opinion, salvage the situation for the revisionists for the reasons above and in the given circumstances of this case.

It may be mentioned here that if the executing Court finds any difficulty in identifying the land, he may, in his discretion, appoint a Survey Commissioner to dispel the confusion and thereafter, execute the decree. Whether such course should be taken recourse to or not, is a matter to be decided by him in his judicial discretion.

In the result, the revision petition is dismissed.