JYOTIRMOY PAUL Vs. ARCHANA RANI DEB

JUDGEMENT

(1.) Heard Mr. D. R. Choudhury, learned counsel appearing for the petitioner as well as Mr. Samarjit Bhattacharji, learned counsel appearing for the respondents.

(2.) By this application filed under Article 227 of the Constitution of India, the petitioner has questioned the legality of the order dated 03.03.2015 passed by the executing court ( the Civil Judge, Senior Division, West Tripura, Agartala, Court No.1) in Misc.(J) 09 of 2014. The petitioners herein filed an application under Section 144 read with Section 151 of CPC for restitution of the land which was not part of the decreetal land but taken into possession by the decree holders, the respondents herein by the aid of the bailiff of the court. According to the petitioners, the Schedule-C land measuring 0.009 acre is also recorded under plot No.2297. The plot No.2297 is a large plot. The petitioners, the judgment-debtors, have their title over some part of the land pertained to plot No. 2297. But, that part which was not included in the decree has also been taken into possession by the decreeholders and as a result, the petitioners filed two applications, one under Section 144 read with Section 151 of the CPC for restitution of their possession of the land which was not part of the decreetal land and another under order 26, Rule 10A of the CPC for purpose of survey.

(3.) Mr. Choudhury, learned counsel appearing for the petitioners has succinctly submitted that without properly appreciating the averments made in the said petition filed under Section 144 read with Section 151 of the CPC, being Misc.(J) 09 of 2014, the executing court has rejected the petition by the impugned order dated 03.03.2015. The execution case on the basis of the report of the bailiff was disposed of on 06.08.2014. The report of the bailiff was accepted by the court and there had been no protest against the said report. However, from the application filed under Section 144 read with Section 151 of the CPC, it appears that on 25.07.2014 the bailiff of the execution court without taking any assistance from any Survey Commissioner or without taking any measurement of the land as described in the decree, in particular in the schedules B, C and D had taken possession having been solely guided by the decree holders. On taking possession, the bailiff posted the pillars over the land, which is much beyond the decreetal land. It has been further stated that the bailiff of the court is not an competent person to survey and as such, he did not even try to survey the plot according to the decree. A specific statement has been made in the para 7 of that petition which is as under: