Smt. Shanti Jaiswal vs Indralal

U.C. Maheshwari, J.—The petitioners-decree holders have filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 11.12.2012, passed by the Civil Judge Class-II, Teonthar, district Rewa in Execution Case No. 67-A/93x97-11 whereby the execution proceeding filed by the present petitioners to execute the decree dated 14.10.1996, passed by Civil Judge, Class-II, Teonthar in COS No. 67-A/93 has been dismissed at the initial stage holding that the measurement of the encroached disputed area has been stated in the scale of hand in the annexed map with the decree and on the basis of such scale of measurement the impugned decree could not be executed. The petitioners'' counsel after taking me through the averments of the petition as well as papers placed on record argued that the aforesaid decree being passed by the competent court the executing court did not have any authority to dismiss the execution proceeding on the aforesaid ground. If there was any ambiguity in the decree with respect of the scale of measurement of the disputed property, then such question being related to the execution of the decree could have been considered and adjudicated by the executing court in accordance with the scheme and the procedure provided u/s 47 of the CPC. In continuation he said that in any case his execution proceeding could not be thrown away in the manner in which the same has been thrown by the executing court and prayed for setting aside the impugned order with appropriate direction to the execution court to proceed further and execute the decree by admitting and allowing this petition.

Shri K.S. Jha, learned appearing counsel for the respondents-judgment debtors by justifying the impugned order said that the same being based on proper appreciation of the available factual matrix in which the execution of the decree was not possible, does not require any interference at this stage. He further said that in the lack of any specific scientific scale of measurement in the impugned decree, the same could not have been executed and pursuant to that the executing court has not committed any error in passing the impugned order and prayed for dismissal of this petition.

Having heard the counsel, keeping in view their arguments, I have carefully gone through the papers placed on record alongwith the impugned order.

It is undisputed fact that in a suit filed by the predecessor in title of the present petitioners-decree holders an ex-parte decree for possession with respect of the disputed land bearing no. 107, Rakwa 1.75 acres was passed against the respondents-judgment debtors. Apart the aforesaid the decree to dispossess the respondents-judgment debtors from some Government land the part of a public way was also passed. Such judgment and decree is annexed with this petition as Annexure P-3. The map of the disputed land/property is also annexed with the decree as part and parcel of the same.

It is settled proposition of law that executing court has no right to go behind the decree. So firstly in such premises, I am of the considered view that the executing court was duty bound to ascertain the measurement of the disputed land, for which the decree was passed, after calling the record of the original suit. Besides this, such court was also duty bound to hold an enquiry to ascertain the measurement of the disputed land as per procedure u/s 47 of the CPC because the disputed question on which the executing proceeding was dismissed was directly relating to the execution of the decree and same could have been enquired by the executing court in accordance with the scheme of Section 47 of the CPC. In such premises, is it held that Executing Court has committed grave error in dismissing the execution proceeding without holding any enquiry u/s 47 of the CPC.

Apart the aforesaid, in the normal course no civil court passes any decree which could not be executed and once the executable decree is passed by the civil court, then contrary to finding of the judgment on which the decree has been passed the executing proceeding could not be thrown away unless such execution of such decree is barred by any provisions of law, which is not the situation in the case at hand. So in such premises, also the executing court has committed error in dismissing the execution proceeding of executable decree.

Beside the aforesaid, I would like to observe here that when the scale of measurement of property is stated in the scale of the hands, then measurement of the hands could be ascertained after extending an opportunity to the parties to adduce the evidence and by appreciating the same, but such process has also not been followed by the executing court.

In view of the aforesaid discussion, the impugned order of the executing court being perverse and contrary to law is not sustainable. The same deserves to be set aside.

In view of aforesaid this petition is allowed and by setting aside the impugned order, Annexure P-1, the impugned execution case is restarted and remitted back to the executing court with a direction to proceed further to execute the decree and shall also decide all the disputed questions relating to the execution, discharge and satisfaction of the decree in accordance with the scheme and procedure provided u/s 47 of the CPC. In such premises, it is also observed that the executing court shall be at liberty to extend the opportunity to the parties to adduce the evidence to ascertain the actual measurement of the disputed land described in the map annexed with the impugned decree. However the executing court is directed to take an endeavour to expedite the proceeding of the impugned execution and conclude the same on some early date, probably on or before 30th June 2014.

The petition is allowed as indicated above. There shall be no order as to cost.