PARAMESWAR RAY AND ANOTHER Vs. RAMESWAR RAY

JUDGEMENT

(1.) By this petition under Article 227 of the Constitution of India, challenge is made to the orders dated 23.6.2016, 27.9.2016 and 5.11.2016 respectively passed by the learned Civil Judge (Jr.Division), Rourkela in Execution Case No.2 of 2010. By order dated 23.6.2016 the learned executing court dismissed the application of the J.Drs under Sec. 47 read with Sec.151 C.P.C., whereas by order dated 27.9.2016, the application filed by the J.Drs under Sec.151 of C.P.C. was rejected. By order dated 5.11.2016, the J.Drs have been directed to vacate the suit house within one month.

(2.) Opposite party as plaintiff instituted T.S.No.40 of 2001 in the court of the learned Civil Judge (Jr.Division), Panposh for declaration of right, title, interest, confirmation of possession over the suit schedule house and recovery of possession, if found to be dispossessed in the meantime, impleading the petitioners as defendants. The defendants filed written statement denying the assertions made in the plaint. The suit was decreed. Assailing the judgment and decree of the learned trial court, the defendants filed R.F.A.No.45 of 2007. The appeal was allowed and the suit was remanded to the learned trial court. After remand the suit was decreed. Against the said judgment, the defendants filed appeal before the learned Additional District Judge, Rourkela. The same having been dismissed, they filed R.S.A.No.329 of 2010 before this Court. The appeal was dismissed. On 26.6.2010 the D.Hr levied Execution Case No.2 of 2004. J.Drs filed an application under Sec. 47 C.P.C. challenging the executability of the decree. The D.Hr filed objection. On 23.6.2016 the executing court dismissed the application holding inter alia that the same is not maintainable as barred by limitation. Assailing the said order, the J.Drs filed Civil Revision No.5 of 2016 before the 1st Additional District Judge, Rourkela. The revisional court held that revision is not maintainable. While the matter stood thus, J.Drs filed an application under Sec.151 C.P.C., being I.A.No.2 of 2016 challenging executability of decree in the executing court. The same was rejected on 27.9.2016.

(3.) Mr.Sahu, learned Advocate for the petitioners submitted that the learned executing court committed a manifest illegality and impropriety in dismissing the application filed by the J.Drs under Sec. 47 C.P.C. as barred by limitation. He further submitted that assailing the judgment and decree of the learned trial court, the defendants filed R.F.A.No.45 of 2007 before the learned Additional District Judge, Rourkela. The same having been dismissed, they filed R.S.A.No.329 of 2010 before this Court. The same was dismissed on 2.9.2015. Thus, the application under Sec. 47 of C.P.C. filed by the J.Drs was well within the time. He further contended that the suit schedule property belongs to Orissa State Housing Board. Though property was leased out in favour of the D.Hr, but the same is a joint family property. The Orissa State Housing Board was not a party to the suit. Thus the decree is a nullity.