NANI GOPAL MAHINDER Vs. ARABINDA MAHINDER

JUDGEMENT

(1.) In this judgment the reference to petitioner and opposite party will include reference to their respective predecessors-in-interest.

(2.) In an astounding order of 7th August, 2008 passed by the Additional District Judge, Fourth Court, Paschim Medinipur, a section 47 application, under the Code of Civil Procedure, of the opposite party has been allowed. Despite two decrees passed by this Court in appeal, conclusively declaring that the petitioner had right, title interest over a property being plot No. 1233 in Mouza: Bibigunj, Dist. Paschim Medinipur, the learned Judge has held to the contrary. He has held that the opposite party has such right. The result of this determination is stalling the execution proceedings No. 7 of 2004 out of T.S. No. 19 of 1974 filed by the petitioner instituted more than thirty five years ago and finally decided in second appeal some five years ago. Now this kind of an order could not have been conceived in a section 47 application. It is trite that a Court in execution or any proceeding out of execution cannot go behind the decree. But in passing this order the learned Judge has done just that. An attempt was made on behalf of the opposite party to unnecessarily prolong the hearing of this application by inviting the Court to each and every factual detail, which was largely unnecessary, and also to the alleged scope of section 47 of the Code of Civil Procedure to reopen the decree. I have not allowed such exercise.

(3.) Instead of claiming his title in that suit by way of a counter-claim the petitioner filed a Title Suit No. 19 of 1974 before the learned Munsif. That suit was dismissed on 18th February, 1982; the petitioner carried the matter in appeal before the learned Additional District Judge First Court, Paschim Medinipur. He remanded the matter back to the learned Munsif; even after remand, the learned Munsif dismissed the suit on 27th February, 1991; once again an appeal was preferred before by the petitioner the learned Additional District Judge, Fast First Track Court Paschim Medinipur; that appeal was allowed on 22nd December 2003; a second appeal was preferred by the opposite party before this Court being SAT No. 456 of 2004, renumbered as SA 171 of 2005. Meanwhile, the petitioner had started Execution Case No. 7 of 2004 in the First Court of learned Civil Judge (Junior Division), Paschim Medinipur.