MEHERAN BIBI Vs. SK RAZZAK

JUDGEMENT

(1.) This second miscellaneous appeal arises out of an order passed in a miscellaneous appeal disposed of by the Additional Court of the Subordinate Judge at Asansol. The learned judge dismissed the appeal and upheld the decision of the learned Munsif who ordered for restoration of possession of certain lands in an execution proceeding in connexion with a decree. The decree-holders are the appellants before us and they are aggrieved at the orders passed by the courts below.

(2.) The relevant facts in this case are that the appellant-decree-holders started an excution case for recovery of possession of certain properties in pursuance of a decree. An application was filed by the judgment-debtors under Section 47 of the Code of Civil Procedure. But the decision was against the judgment-debtors, and as such, there was an appeal. In that appeal the decree-holders were permitted to proceed with the execution of the decree after certain amendments in the application for execution and after removal of some defects appearing therein. At the end of the judgment however, the learned Subordinate Judge remarked that before him there was a contention raised by the judgment-debtors that no delivery of possession was possible without local investigation. There was no decision on that point, but the matter was left with the executing court to be considered in connexion with delivery of possession of the suit lands and he made it clear that the said question remained open for deter-mination at appropriate stage. Admittedly after the disposal of that appeal the decree-holders, as directed by the appellate court, remedied the defect in the application for execution and thereafter t hey prayed for delivery of possession. On the prayer of the decree-holders, in fact, a writ of possession was issued and ultimately the said writ was executed and delivery of possession of the properties in question was effectively done. Thereafter the judgment-debtors applied before the court for restoration of possession of the properties to them on the ground that the executing court ought to have considered the question of local investigation and without determination of that question the decree-holders were not entitled to get delivery of possession. The learned executing court, it appears from the perusal of the order, thought that it was the duty of the decree-holders to bring to the notice of the learned court the observations made by the appellate court regarding the consideration about local investigation. The learned executing court thought that as the judgment-debtors were not heard on that question, their case had been seriously prejudiced and in that view of the matter he recalled the order dated 28-8-1963 directing issue of writ of delivery of possession and vacated the said order. Along with that there was the order for restoration of possession of the property to the judgment-debtors. In the appellate court the learned Subordinate Judge, as we have already stated, made certain remarks about local investigation which resulted in the recalling of the order in the executing court.

(3.) We have heard Mr. Mitter, the learned Advocate appearing on behalf of the appellants and Mr. Banerjee for the respondents. At the very outset Mr. Banerjee raised one point as to the maintainability of an appeal against the order passed by the learned Munsif directing delivery of possession of the property to the judgment-debtors under Section 151 of the Code of Civil Procedure. This point was raised when this matter was taken up by a Single Bench constituted by Mr. Justice S. K. Datta. His Lordship found some contradictory decision in the case of Surpat Singh v. Ratanchand, reported in 43 Cal WN 1028 : (AIR 1940 Cal 92) as against several other decisions, particularly, in the cases reported in 31 Cal WN 290 : (AIR 1927 Cal 285). 35 Cal WN 105: (AIR 1931 Cal 779 (2)) and (1954) 58 Cal WN 800. His Lordship thought that in view of the contradictory decisions, the matter should be decided by a Division Bench, and as such, the matter has been placed before us.