Sukumar Roy vs Nakul Chandra Dutta and Others

S. Chandrashekhar, J.—Aggrieved by order dated 13-09-2011 in Execution Case No. 07 of 2009, the petitioner claiming himself a tenant of the decree-holder and the judgment-debtor No. 11, has filed the present writ petition. It is stated that a Partition Suit No. 01 of 1984 was filed in which a preliminary decree was passed on 26.03.2009. Thereafter, a pleader commissioner was appointed who demarketed the share of the properties in the suit schedule property. After the final decree was passed, Execution Case No. 07 of 2009 was filed by the decree-holder in which the petitioner filed an objection which was registered as Misc. Case No. 04 of 2011. The Misc. Case No. 04 of 2011 has been dismissed vide order dated 13.09.2011. Aggrieved the petitioner has approached this Court by filing the present writ petition.

Heard the learned counsel for the parties.

Mr. Ananda Sen, the learned counsel appearing for the petitioner submits that, the petitioner who is a tenant of the decree-holder and the judgment-debtor No. 11 and who has been paying rent to both the decree-holder and judgment-debtor No. 11 cannot be evicted from the suit schedule property without due process of law. In a Partition Suit only share of the co-sharers is demarketed and therefore, for evicting the petitioner, a separate eviction suit was required to be preferred by the decree-holder however, in Execution Case No. 7 of 2009 no order for evicting the petitioner can be passed.

As against the above, Mr. M.K. Dey, the learned Senior counsel appearing for the respondent No. 1 submits that, even the Misc. Case No. 04 of 2011 was not maintainable in as much as, the petitioner is not a party to the Partition Suit. It is further submitted that, after the preliminary decree was passed, a pleader commissioner was appointed who demarketed the suit schedule property. The report submitted by the pleader commissioner indicates that the petitioner was not found occupying the suit schedule property. It is stated that, the petitioner has been set up by the judgment-debtor only to delay the execution of the final decree passed in Partition Suit No. 01 of 1984.

I have carefully considered the submission of the learned counsel for the parties and perused the documents on record.

From perusal of the application dated 18.06.2011 filed by the petitioner in Execution Case No. 07 of 2009 which was registered as Misc. Case No. 04 of 2011 it appears that the only plea taken by the petitioner-objector is that he is the tenant of one Nakul Chandra Dutta and Tripti Lakkhan and he is in possession of a part of the suit schedule property in Partition Suit No. 01 of 1984. Mr. Ananda Sen, the learned counsel appearing for the petitioner submits that, the petitioner should have preferred an application under Order XXI, Rule 97 , r/w 101 , C.P.C. to which Mr. M.K. Dey, the learned Senior counsel for the respondent raises a serious objection. Be that as it may it is well settled that an Executing Court cannot go behind the decree. In Dhurandhar Prasad Singh Vs. Jai Prakash University and Others, the Supreme Court has observed as under:

"The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that executing court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing........

This is not the case of the petitioner in his petition which was registered as Misc. Case No. 04 of 2011 that the decree is not executable in as much as, the property is not identifiable. It is also not the case of the petitioner that the decree has been passed by the court which has no jurisdiction and therefore, I am of the opinion that the objection preferred, by the petitioner has rightly been dismissed by the trial court. I find no merit in the writ petition and accordingly, the writ petition is dismissed.