Sohani Devi vs Rajendra Nath Kalita

D.N. Baruah, J.—This Revision is directed against the judgment and order dated 26.7.93 passed by the 2nd Assistant District Judge, Guwahati in Money Execution Case No. 32/62 dismissing the case. It is really sad that the litigation in respect of execution of a decree passed on 11.8.61 in Money Suit No. 37/60 has been prolonged for such a long lime.

Petitioner filed an Execution case (Money Execution Case No. 32/62) in the Court of the Sub Judge, Nagaon (as was it then). This case was subsequently transferred to the Court of the Sub-Judge Guwahati fox execution of the said decree in respect of an area of land measuring 13 1/2 Lechas situated at Sahar Guwahati, Block No. 2, Fancy Bazar. The said land was purchased by the Petitioner in an auction sale. Thereafter, the judgment debtor (opposite party) resisted the decree by filing Annexure-C objection, stating, inter alia that he did not know about filing of the execution case and therefore, prayed for two months'' time to take necessary steps before delivery of possession of the land to the decree-holder (Petitioner) by demolishing the structures standing thereon,

That Assistant District Judge, No. 2, by order dated 2.3.84 rejected the prayer with cost and directed Nazir to execute the decree. Again another application was filed under Order 21, Rule 29 of the CPC read with Section 151 by some persons claiming to be the tenants before the 2nd Assistant District Judge. This petition was also dismissed by the Court.

Being aggrieved, the opposite party moved this Court by filing a revision (Civil Revision No. 394/88). This Court found no jurisdictional error in passing the order and accordingly rejected the petition. Thereafter, again attempts were made to resist the execution of the decree by filing various applications and ultimately the Assistant District Judge by order dated 16.7.91 rejected the prayer and directed the Lat Mandal for ascertaining the actual position of the land. Against that order also a revision (Civil Revision No. 241/91) was filed by the opposite party contending that the Petitioner on the strength of the decree was going to lake some land other than the decretal land and if the writ was executed by Nazir, the opposite party (JD) would suffer irreparable loss and great hardships would be caused to him. This Court once again dismissed the said revision by judgment and order dated 28.8.92.

After dismissal of the aforesaid Civil Revision, the opp. party filed yet another application contending, inter alia, that though the decree holder (Petitioner) claimed to have purchased 1.3 1/2 Lechas of land out of 1 Katha 7 Lechas of land under K.P. Putta No. 1039 of Dag No. 1104 of Fancy Bazar, Guwahati, in auction sale on 6.5.65, the sales was never confirmed and no sale certificate was issued by the Assistant District Judge No. 2. He further contended that from the certified copy of the sale certificate it appeared to him that the certified copy was not the true copy of the original certificate. Besides, the original certificate was also not on the record, He also contended that the total area of the said patta was 1 Katha, 7 Lechas but the sale certificate the not indicate which portion of the said land was sold. Therefore, the sale certificate was vague and on the basis of the said certificate the decree could not be executed. It was further stated that there were permanent buildings over the said plot of land and there was no decree for recovery of possession by demolition of the houses of the opposite party. On the basis of the said decree the house of the opposite patty could not be demolished to put the Petitioner in possession. The land in question was a joint properly and the Petitioner could not obtain physical possession without partition etc. The Petitioner filed objection against the said petition denying the statements made in the petition. The learned Asstt. District Judge, No. 2, after hearing the parties allowed the petition treating it to be a petition u/s 47 Code of Civil Procedure. In his order the Asstt. District Judge observed thus:

In the present case, possession is to be handed over on the strength of this sale certificate. It clearly appears that there is no boundary demarcation to identify the land. On the basis of this sale certificate I find that it is not possible to issue a writ properly identifying and describing the land. It appears from the record that this point was never raised as earlier occasion and for the first time this has been raised as a points of objection at this execution stage.

For the aforestated reasons I find that the sale certificate (decree) cannot be executed and this execution proceeding is liable to be dismissed.

In the result the petition filed by the judgment debtors is hereby treated as one u/s 47 of the Code of Civil Procedure. and allowed for ends of justice.

The execution proceeding is hereby dismissed.

I have heard both sides, Mr. D.N. Choudhury, learned Counsel for the Petitioner submitted that the opposite party (JD) either by himself or through some persons resisted the decree on various pretexts and as a result, the Petitioner had no been able to get the benefit of the degree obtained by her on the basis of the purchase of the land in auction sale. Some of the objections have been reiterated on one or other form just to delay the execution of the decree for the last 30 years. The opposite party has been resisting the execution of the decree just to harass the Petitioner and to deprive him to enjoy the fruit of the decree. Besides, the points raised by the opposite party are nothing but reiteration of the points which had already been decided by the Court below as well as by this Court. Besides, even if there are some new points, as held by the Assistant District Judge and those can not be raised after lapse of about 30 years. According tO the learned Counsel for the Petitioner, the learned Assistant District Judge committed manifest error in exercise of his jurisdiction by dismissing the petition u/s 47 of Code of Civil Procedure. Mr. Choudhury further submitted that the Assistant District Judge had no jurisdiction to reopen the matter by Molding that the decree could not be executed for giving delivery of possession of the land, sold in auction without confirming the sale as the sale was a nullity and inoperative in the eye of law. According to Mr. Choudhury, the Assistant District Judge had no jurisdiction to come to this finding by reopening the matter which had reached its finality under the provisions of law.

Mr. S.P. Roy, learned Counsel for the opposite party (JD), on the other hand, strenuously argued that the land was sold in auction sale as far back in 1965. However, the sale was never confirmed and on the basis of such unconfirmed sale the decree holder/Petitioner had not acquired any right to receive possession. Besides, Mr. Hoy made two alternative submissions that (i) the possession was already delivered and the decree was satisfied and therefore, the force of the decree had already been spent up and on the basis of the said decree, the Execution case No. 32/62 was not maintainable; and (ii) the decree holder (Petitioner) purchased the land in auction sah, however, it was never confirmed. There was no proper boundary on the basis of which possession could be delivered. Mr. Roy further submitted that there were some buildings standing over the land as the Petitioner purchased only the land in auction sale, he could not get delivery of possession of land by demolishing the said house,

I have perused the case record I find that most of these points have been raised in earlier petition also. Besides, even if there are some points, which were left at that time, in my opinion, this cannot be agitated after lapse of about 30 years.

The provision of principles of res judicata, constructive res judicata are also applicable in case of execution proceeding. If certain question of facts have already been determined or which facts ought to have been raised as ground of defence and the party to the proceeding failed to do so, same question cannot be raised in another execution proceeding or in the subsequent execution proceeding.

In Kani Ram and Another Vs. Smt. Kazani and Others, the Supreme Court had the occasion to deal with a similar matter. In the said decision the Supreme Court observed thus:

The decision given in the first set of execution proceedings was thus not one of law only but of a mixed question of law and fact, Such a decision undoubtedly would operate as res judicata. In execution proceedings Section 11 of the CPC does not apply in terms but the rule of constructive res judicata has always been applied.

In the instant case, definitely all the points raised are question of law or of mixed question of law and facts. Therefore principles of res judicata or constructive res judicata are appllcable in the present in view of me above, the judgment debtor (opposite party) is precluded ftom rasing all these points at this later stage.

Before parting with the records, I am considered to hold that the Petitioner (DH) inspite of obtaining the decree as far back on 11.8.61 has not been able to get the fruit of the decree and for this the Respondent is solely responsible.

Considering the facts and circumstances of the case, I dispose of this petition sailing aside the impugned judgment and direct the Executing, Court to execute the decree Immediately and if there is any difficulty in demarcating the boundary, Nazir may be directed to locate the decretal land.

The judgment debtor (opposite party) shall pay cost of Rs. 500/- to the decree holder (Petitioner).