DHUSASAN NAYAK Vs. DHADI NAYAK

JUDGEMENT

(1.) The judgment-debtor in Execution Case No. 120 of 1975, levied for executing the decree in Title Suit No. 15 of 1961 in the Court of the Munsif, First Court, Cuttack, is the petitioner in both these applications under Section 115 of the Civil P. C. The final decree in the said suit allotted 4-2/63 decimals out of 11 decimals in plot No. 498 in Khata No. 60 in favour of the decree-holders. The remaining property out of the plot was to go to the judgment-debtor and some others. Execution was levied to take possession of the aforesaid portion of the plot. A Commissioner was appointed to deliver possession upon measurement. The Commissioner submitted a report to the effect that possession had been delivered. An objection was filed purporting to be under Section 47 of the Code which was registered as Misc. Case No. 34 of 1978 challenging the Commissioner's report and contending that delivery of possession of excess land had been effected. By order dated 28-6-79, the Executing Court accepted the Commissioner's report and reflected the prayer for deputing another Commissioner. Civil Revision No. 699 of 1979 is filed against that order.

(2.) The Executing Court independently examined the stand taken by the judgment-debtor that possession of about 2 decimals in excess had been delivered to the decree-holders and after receiving evidence from parties rejected that stand by order dated 28-7-79 by holding:-

(3.) When both these revisions came up for admission and hearing before a learned single Judge, objection was raised by counsel for the opposite parties relying on a Division Bench decision in the case of parshava Properties Ltd. v. A.K. Bose, AIR 1979 Pat 308 that appeals lay against the orders and the Civil Revisions Were not maintainable. The learned single Judge directed that the revisions be placed before a Division Bench for disposal. That is how these revisions have been placed before us.