PRAGYAN ROUT Vs. HEMA PRAVA RAY

JUDGEMENT

(1.) THE petitioner is the judgment -debtor in Execution Case No.9 of 2005 in the Court of learned Civil Judge (Sr. Division) Second Additional Court, Cuttack wherein the decree passed in T.S. No.280 of 2000 of the said Court is sought to be executed. The disputed land measuring Ac. 0.190 decimals situates on Hal Plot No.1411 in Hal Khata No.273 of Unit -22 Minkamal Patna in Cuttack town. Respondent No.1 filed the suit for declaration of title and recovery of possession of the shop rooms, standing trees on the aforesaid land. The petitioner was defendant No.5 and her husband was defendant No.4 in that suit. They contested the suit, but the suit was decreed against them. The petitioner filed appeal before this Court challenging the decree vide RFA No.80 of 2003, but the said appeal was dismissed on contest. The petitioner preferred LPA No.88 of 2005, but the said LPA was found to be without any merit and was dismissed at the stage of admission. The petitioner then filed SLP (Civil) No. 10675 of 2005 before the apex Court, but that was also dismissed by the apex Court. The opp.party No.1 then filed Execution Case No.9 of 2005 seeking execution of the decree. The petitioner filed objection under Section 47 of the C.P.C. stating therein that the decree is not executable for vagueness in the description of the properties sought to be executed, that the decree passed by the Civil Court was without jurisdiction and that recovery of possession is not permissible in an injunction decree. Learned executing Court after hearing the parties rejected the objection by order dated 26.8.2006. The legality of the said order is under challenge in this revision.

(2.) MR . S.P. Mishra,learned counsel for the petitioner submits that delivery of possession of the entire suit land, as sought for by the decree -holder, is contrary to the decree and therefore, cannot be executed. He states that the decree relates to recovery of six shop rooms only, but the property sought to be executed is entire suit land and shops thereon and the description also suffers from vagueness. He also argues that although a decree for permanent injunction is executable under Order 21 Rule 32 of the CPC, yet the execution would not be maintainable where dispossession after the decree is not shown and in the present case no dispossession is shown. According to him, the decree is a nullity as the same was passed by the Civil Court, although jurisdiction of the Civil Court was barred under Section 39 of the O.E.A. Act. He alleges that learned Executing Court without appreciating these aspects mechanically rejected the objections raised by the petitioner -Judgment debtor. In support of such contention Mr. Mishra, relied on the judgment of this Court in Second Appeal No.35 of 1976 (Gangadhar Choudhury v. Syod Sazil Ali and others.) in which this Court observed that - "vague description of the suit property in the decree makes the decree unexecutable."

(3.) IT is not disputed that opp.party No. 1 sought for declaration of title, recovery of possession over the suit schedule properties and learned Trial Court passed the following decree :