Shamim Ahmed Niyazi vs Subhania Anjuman Islamiya

Goutam Bhaduri, J

The instant petition is against the order dated 17.01.2018, wherein an application filed under Section 47 read with Section 151 of the C.P.C. has

been dismissed.

Learned counsel for the petitioner would submit that the decree though was passed in the year 1998 and it would reveal that the identity of the

property itself is not clear. It is further contended that the decree holder is also not the owner of the property which would be evident from the

revenue documents which are placed on record and the decree was in-executable because of the uncertainty. It is stated that when the application

was filed under Section 47 read with Section 151 CPC to make an enquiry, it was obligatory on the part of the executing Court to decide the question

and proceed thereafter. He therefore submits that under the circumstances the order of the executing Court may be set aside and the Court may be

directed to decide the question of identity and ownership of the property.

Perusal of the decree would show that it was passed on 17.01.1998 in Civil Suit No.33-A/97. The decree was a compromise decree wherein the

judgment debtor agreed to handover the possession of the suit property after 17.01.1998. Admittedly, as appears till today the possession is with the

judgment debtor. Perusal of the copy of the plaint would show that the boundaries have been shown in respect of the suit property, therefore, if the

identity of the property was itself in question, the fact that the judgment debtor/defendant agreed for a compromise decree laments the fact that the

identity of the property is certain and no uncertainty exists. The decree was passed in the year 1998 for ejectment and when the specific prayer is

sought for for possession of the suit property thereafter it is almost more than 20 years have passed and fruits of decree is still to be materialized. The

issue is raised by the judgment debtor after 20 years cannot be gone into and it is a settled position that in case of dispute of identity of property the

boundary always will prevail over the other issues.

Consequently, the rejection of the application by the Court below is well merited which do not call for any interference. It is expected that when the

decree has been passed in the year 1998, that too a compromise decree in order to uphold the faith of the litigants over the Courts, no unnecessary

adjournment shall be granted by the Court below and fruits of the decree cannot be deferred until time immemorial at the instance of the litigating

party. The application appears to be frivolous and misconceived.

Accordingly, the petition is dismissed with a cost of Rs.5,000/- payable to the decree holder.