SK MANSUR ALI Vs. MD EJAHAR HUSSAIN

JUDGEMENT

(1.) The order dated 1.10.07 passed by learned Civil Judge, Islampur in the district of Uttar Dinajpur in Title Execution Case No. 11/95 allowing the petition of the opposite party decree holder praying for police help for execution of the decree is- under challenge.

(2.) On 2.1.2007 the decree holder filed a petition before the learned Executing Court complaining that the decree could not be executed in spite of issuance of writ of delivery of possession on account of obstruction having been put by the judgment debtor for execution of the writ. As such police assistance was proved for execution of the writ. In the petition it was inter alia stated that the obstruction to the execution of the decree was being made on the basis of the wrong LR plot number in the decree. It has been averred further that the point of objection of the judgment-debtor as to mention of the wrong LR plot number was resolved by the learned Court under Order No. 76 dated 22.1.03 wherein the Court held that mention of the wrong LR plot number was of no consequence since the decree mentioned the correct RS plot number 729 with the boundary of the land.

(3.) Mr. Bidyut Banerjee, learned Senior Counsel appearing for the decree holder submitted that the only ground taken in the application was that without examining the bailiff or allowing the judgment-debtor to cross- examine the decree holder the order granting police help for execution of the decree was wrong; and no other point was raised in the application of the judgment-debtor before this Court and all other points as have been raised by MR. Chatterjee were not agitated in the application and in fact all such points including insertion of wrong LR plot number in the execution application were long ago resolved and adjudicated upon but the Executing Court by Order No. 76 dated 22.1.03 which has not been challenged before any superior Court. According to MR. Banerjee decree can be corrected under section 151 as well as section 152 of the CPC and correction of the schedule of property in the decree by the Executing Court cannot be said to be unlawful; and reference in this connection has been made to the decision of the Supreme Court in Niyamat Ali Molla vs. Sonargon Housing Cooperative Society Ltd. and Ors., 2008 AIR(SC) 225 MR. Banerjee submitted that the boundary of the decretal property as has been mentioned in the application for execution of the decree could not be challenged to be untrue or wrong and it cannot be said that such boundary which is sufficient to indicate the property in dispute or the decretal property is vague or insufficient. Thirdly, it is argued that actual LR plot number would be 757 which was indeed typed first in the application for execution but then under wrong impression it was struck off to type as LR plot No. 759 but in fact the LR plot number would be 757 which corresponds to RS plot No. 729 and the said RS plot No. 729 coupled with the boundary of the decretal property which have been correctly mentioned in the application for execution leave no manner of doubt as to the identity of the decretal property and in fact this point was raised before the learned Executing Court which resolved the same by its order dated 22.1.03 and also 29.5.03. It is further argued that the decree holder filed the petition for police help supported by an affidavit and the Court having convinced of the obstruction raised by the judgment-debtor allowed the prayer for police help and it is not the fact, nor could it be so that without the bailiff having gone to the decretal property to execute the decree and without the bailiff having faced obstruction from the judgment-debtor the decree holder filed the petition straightway for police help with the fictitious plea of alleged obstruction by the judgment-debtor.