BISHWANATH Vs. UTTARA BEWA

JUDGEMENT

(1.) This revision petition by the judgement-debtor is directed against the order of the executing court rejecting his petition under S.47 of the Civil P.C. resisting the execution filed by the opp. party-decree-holder.

(2.) The opposite party filed O.S. No. 9 of 1973 against the petitioner and some others praying for declaration of title, confirmation of possession and in the alternative for recovery of possession in respect of the properties described in Schedule 'A' to the plaint. The opposite party who is the mother of the petitioner, claimed exclusive title and possession over the suit land on the basis of a permanent lease deed said to have been executed on 29-4-1952 by its owner Kamal Lochan Misra. The occasion to file the suit, as stated in the plaint arose when the defendants (including the petitioner) fraudulently got their names recorded in the settlement records in respect of the suit land. It was specifically stated in para 10 of the plaint that on the basis of the settlement records the defendants threatened the plaintiff on 25-10-1972 to dispossess her from the suit properties. In the suit the petitioner as well as the other defendants were set ex parte. The suit was decreed ex parte on 2-8-1973. The ordering portion of the judgement reads as follows :

(3.) The opposite party filed execution case No. 17 of 1980 on 5-2-1980 praying for delivery of possession of the suit land to her. In the proceeding the petitioner and other judgement debtors filed objection on 26-11-1980 objecting to the execution, inter alia, on the grounds that the execution case was not maintainable; that the plaintiff decree-holder had lost her title and interest over the property by the date of the decree sought to be executed; that the alleged permanent lease executed in her favour by late Kamal Lochan Mishra was a fraudulent transaction and that the litigation was an outcome of malice of the decree-holder towards the judgement-debtors.