BISWANATH DAS Vs. DEBIKARANI MISRA

JUDGEMENT

(1.) THE order dated 18.8.2006, Annexure -2, passed by the learned District Judge, Khurda at Bhubaneswar in C.R.P. No. 19 of 2005 is assailed by the petitioner in the said CRP invoking jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.

(2.) IN the aforesaid CRP, the order dated 25.11.2005, Annexure -1, passed by the learned Civil Judge (SD), Bhubaneswar in I.A No. 310 of 2005 arising out of Execution Petition No. 20 of 2004 was assailed by the petitioner. It is revealed that the petitioner who was judgment -debtor No. 13 in the aforesaid Execution Petition filed an application under Section 47 CPC with a prayer to drop proceedings of the said Execution Petition against him. The learned Civil Judge (SD), vide order Annexure -1, rejected the said petition. The said order, Annexure -1, has been confirmed by the learned District Judge by the order Annexure -2 which is impugned in this case. In the aforesaid Execution Petition the ex parte final decree passed in Title Suit No. 197 of 1991 by the learned Civil Judge (SD), Bhubaneswar as long back as on 19.1.2004 was sought to be executed. The said suit was one for partition. The present petitioner was arrayed as defendant No. 13 in the said suit. Though he appeared in the suit, no step being subsequently taken by him, he was set ex parte. Thereafter an ex parte preliminary decree was passed on 27.2.1997. The said ex parte preliminary decree was not varied by any higher Court. Final decree proceeding being initiated by the decree -holder, notice thereof was served on the petitioner on 1.7.1998. As he again chose not to contest that proceeding, he was set ex parte. In course of final decree proceeding, the executing Court appointed a Civil Court Commissioner. The latter duly served notice on the petitioner. Still he neither appeared nor did file any objection. Consequently, on 19.1.2004 ex parte final decree was passed. Thereafter the aforesaid Execution Petition was filed on 21.6.2004. The petitioner appeared in the execution proceeding on 26.7.2004, but still he did not take any steps for which he was set ex parte on 30.9.2004. On 7.5.2005 when steps were taken for delivery of possession, the petitioner raised obstructions and then filed objection before the executing Court under Section 47 CPC on 6.7,2005 on the basis of which the aforesaid I.A. No. 310 of 2005 was initiated.

(3.) MR . D.S. Misra, has entered appearance on behalf of the opposite party. Resisting the submission of Mr. Sarangi, Mr. Misra submitted that the petitioner who was a party to the suit being defendant No. 13 never contested the same. He also did not challenge the preliminary ex parte decree in higher Court which was open to him to do so if there was any error in the said decree. Even after receiving notice of the final decree proceeding he did not contest the same nor did he file any objection to the appointment of Civil Court Commissioner or measurement of the disputed land. Thus he is estopped from raising any submission at the stage of execution proceeding. According to him, in the suit admittedly the right, title and interest of the plaintiff over Ac. 0.127 dec. of land more -fully described in the suit schedule was declared which had to be executed. Thus the submission of the learned Counsel for the petitioner being not tenable, the Writ Petition may be dismissed in limine.