JAYDEV PANDA @ TRIPATHY Vs. DILLIP KUMAR PANDA

JUDGEMENT

(1.) This petition seeks to lacinate the order dated 15.12.2017 passed by the learned 1st Addl. Civil Judge (Senior Division), Cuttack in Execution Case No.10 of 1989, whereby the executing court accepted the affidavit dated 8.8.2017 filed by the D.Hr-opposite party with regard to the identification of the suit schedule property in accordance with the plaint, decree and rejected the petition filed by the J.Dr.-petitioner to drop the execution proceeding and directed the Amin Commissioner to help bailiff in delivering possession of the property to the D.Hr.

(2.) This case has a chequered history. The matter has travelled thrice to this Court and once to the apex Court. Bereft of unnecessary details, the short facts of the case are that one Baikuntha Nath Panda filed T.S No.48 of 1977 in the court of the learned Subordinate Judge, Cuttack for declaration that the gift deed dated 18.12.1973 is void and permanent injunction. The suit was dismissed on 30.9.1980. Felt aggrieved, plaintiff filed T.A No.20 of 1981 before the learned District Judge, Cuttack. During pendency of the appeal, sole appellant died; whereafter his adopted son, respondent herein, was substituted. The appeal was allowed on 1.3.1985. The operative part of the judgment is quoted hereunder; "It is hereby declared that the alleged deed of gift Ext.B dated 18.12.1973 is void, illegal and inoperative and defendant no.1-respondent no.1 had derived no title to the suit property and he is permanently restrained from interfering with the possession of the appellant (the present opposite party no.2 who was then represented by the opposite party no.1 as his father guardian) in respect of the same. The subsequent transfers made by the defendant no.1-respondnet no.1 in favour of defendant nos.3 to 7- respondent nos.3 to 7 are also invalid."

(3.) Thereafter, defendant no.1-petitioner filed S.A No.112 of 1985 before this Court. The second appeal having been dismissed, he filed SLP (Civil) No.21994 of 2004 before the apex Court, which was eventually dismissed. The D.Hr-opposite party levied Execution Case No.10 of 1989 for execution of the decree. While matter stood thus, D.Hr filed an application under Order 21 Rule 32(1) CPC for violation of the order of injunction. The J.Dr filed objection to the same. By order dated 16.1.1997, the executing court attached the property of the J.Dr. On 5.5.1997, the D.Hr filed a petition for recovery of possession of four rooms forcibly occupied by the J.Dr violating the order of injunction. The J.Dr filed an objection. On 10.9.1998, the executing court allowed the petition for recovery of possession. Assailing the order, the J.Dr filed Civil Revision No.111 of 1998 before the learned 2nd Addl. District Judge, Cuttack, which was dismissed on 19.9.2000. On 9.11.2000, the J.Dr filed a petition to drop the execution case on the ground that there was no prayer for recovery of possession in the suit and as such, the D.Hr cannot take delivery possession of the property. The petition was dismissed on 26.3.2001. While matter stood thus, the J.Dr filed a petition under Sec.47 CPC, which was registered as CMA No.67 of 2004. The petition was dismissed on 31.8.2005. The J.Dr filed WPC No.12873 of 2005 before this Court. By judgment dated 5.4.2017, learned Single Judge dismissed the petition holding that the J.Dr is stopped to question the identity of the property covered under the gift deed to the suit land. Thereafter, the J.Dr took several adjournments and filed an objection to the execution proceeding. By order dated 22.7.2017, the executing court directed the D.Hr to produce the document for proper identification of the suit property. Pursuant to the said order, D.Hr filed an affidavit describing the identification of the suit property. Thereafter, the executing court issued the writ to the Amin Commissioner to cause delivery possession of the suit property to the D.Hr. Against the said order, J.Dr filed CMP No.972 of 2017 before this Court. By order dated 6.9.2017, this Court allowed the petition and remanded the matter to the executing court granting liberty to the J.Dr to file objection to the affidavit of the D.Hr. After remand, the executing court heard the matter in extenso and held that the writ schedule property, which is sought to be recovered, is a part of the suit property mentioned in the plaint. The suit property is described in the plaint in the sabik specification. The D.Hr in its affidavit dated 8.8.2017 has mentioned the corresponding hal and consolidation number of the khata and plot. In the application dated 5.9.1997 filed by the D.Hr, an order was passed allowing the recovery of possession in respect of the writ schedule property, which is a part and parcel of the suit schedule property. The writ schedule property sought to be executed as described in the affidavit dated 8.8.2017 has been properly mentioned in the schedule of the application dated 5.5.1997. It further held that the writ schedule property has been properly described in the affidavit and the objection raised by the J.Dr is not supported by any documentary evidence. Accordingly, it accepted the affidavit filed by the D.Hr dated 8.8.2017, rejected the petition filed by the J.Dr to drop the execution proceeding and directed the Amin Commissioner to take police help and deliver possession of the writ schedule property to the D.Hr.