SRUSTIDHAR CHOUDHURY Vs. NARENDRA CHOUDHURY

JUDGEMENT

(1.) JUDGMENT -debtor is the Petitioner. He was Defendant in the suit for eviction from disputed 'Ka' schedule land of the plaint. In the suit, a survey knowing Commissioner was deputed who reported the disputed land to be of lesser area than what was claimed in the plaint. Trial Court referred to the Commissioner's report in the judgment but directed in the ordering portion that suit is decreed in respect of the 'Ka' schedule land of the plaint. Defendant preferred an appeal in which suit was dismissed. Plaintiff preferred Second Appeal where decree of the trial Court was restored. This is the decree which is sought to be executed.

(2.) IN the execution proceeding, Defendant judgment -debtor chimed that he is not liable to be evicted from the entire 'Ka' Schedule property as described in the plaint but the decree is executable in the maximum only in respect of the area as found by the survey knowing Commissioner. Executing Court having held that it cannot go behind the decree, this Civil Revision has been filed for setting aside the said order.

(3.) IT is not disputed before me that Commissioner in his report stated the encroachment to be of a smaller area than what is claimed in the plaint. It is also not disputed that trial Court did not reject or disbelieve the Commissioner's report although it discussed the same. In such circumstances the dispute centers round the area in respect of which execution is to be effected by the executing Court.