DINABANDHU BADU Vs. SOMANATH BADU AND ORS.

JUDGEMENT

(1.) PLAINTIFF is the Appellant against the reversing judgment. The suit is for declaration of title and recovery of possession. Plaintiff purchased the disputed land from the father of the first Defendant in 1919. In Title Suit No. 33/351 of 1951/50 Plaintiff prayed for declaration of title, confirmation of possession or in the alternative recovery of possession. That suit was decreed by all the Courts in favour of the Plaintiff for declaration of title and recovery of possession. Plaintiff's case is that on mutual consent of parties, possession was delivered by the Defendants to the Plaintiff on October 12, 1953. Defendants trespassed again on February 4, 1957 and so this suit is filed for recovery of possession.

(2.) THE defence case is that there was no delivery of possession on mutual consent in pursuance of the previous decree. In the absence of execution of the previous decree, the present suit is barred under Section 47, Code of Civil Procedure. It may be noted that the plea was not specifically taken under Section 47 Code of Civil Procedure in written statement.

(3.) MR . G.B. Patnaik contends that the Plaintiff can have a fresh cause of action on the basis of settlement entry being wrongly made in the names of the Defendants despite the previous decree in favour of the Plaintiff. There is no substance in this argument. Section 47 , Code of Civil Procedure clearly lays down that all questions relating to the execution, discharge and satisfaction of the decree must be decided by the Executing Court and not by a separate suit. The question of giving delivery of possession is an integral part of the decree itself and that must be determined by the Executing Court. It is possible to conceive another branch of law where on the basis of a different cause of action a fresh suit may lie. But this suit does not come within such a class. The position of law has been well settled in a series of decisions of the Patna High Court. It would be sufficient to refer to Sovani Jena v. Bhima Roy, A.I.R. 1922 Pat 407 and Tribeni v. Ramasray : A.I.R. 1931 Pat 241 (F.B.). A passage in the Full Bench decision is instructive as it brings out very clearly the principle involved and it runs as follows: