GOPAL SARKAR Vs. SANTOSH MALLIK

JUDGEMENT

(1.) THE order, dated 27.03.2010, passed by the learned Civil Judge, Junior Division, Court No. 2, Agartala, West Tripura, in Case No. Misc. 8/2009, is in challenge in this revision petition, preferred under Section 115 of the Code of Civil Procedure.

(2.) THE respondent obtained a decree against the petitioners in Title Suit No. 4/2005. By the judgment and decree, dated 19.09.2006, passed in T.S. No. 4/2005, while declaring right, title and interest, in the suit land in favour of the plaintiff/respondent, the learned trial Judge ordered that the plaintiff would be entitled to recover khas possession by execution process. THE judgment debtors, as defendants contested the suit on the plea of adverse possession and non-joinder of necessary parties, amongst others. THE learned trial Judge, after considering the evidence and the materials on record, decreed the plaintiffs' suit granting the relief as indicated above. Being aggrieved by the said judgment and decree, the judgment debtors/petitioners, as appellant, challenged the said judgment and decree by filing an appeal, being Title Appeal No. 3/2009, before the learned Addl. District Judge, West Tripura, Agartala. According to the judgment debtors/petitioners, before any stay order could be passed in the said appeal, the decree holder/respondent instituted an execution proceeding for executing the decree and the said proceeding was registered as Exe (T) No. 12/2007 in the Court of the Civil Judge, Junior Division, Agartala, West Tripura. THE judgment debtors/petitioners filed an application under Section 47 of the Code of Civil Procedure, questioning the executability of the decree on the ground of non-joinder of necessary parties in the suit and failure of the learned trial Judge to appreciate the evidence regarding adverse possession. Accordingly, the petition under Section 47 of CPC was registered as Misc. Case No. 8/2009. THE learned Executing Court, by the impugned order, dated 27.03.2010, passed in said Misc. Case, rejected the petition filed by the judgment debtor/petitioners aforesaid. Being aggrieved by the said order, the judgment debtor/petitioners has come up with this revision petition.

(3.) REFUTING the said argument, Mr. B.D. Sengupta, learned senior counsel, appearing for the decree holder/respondent, has submitted that the learned trial Judge duly appreciated the evidence on record and that the executing Court has no scope to examine the questions, regarding adverse possession and non-joinder of necessary parties, raised by a party to the suit. The learned senior counsel, referring to the plaintiff's pleadings, further contended that the plaintiff purchased the share of other co-sharers by registered Sale Deeds and after such purchase, the plaintiff became the absolute owner of the entire landed property measuring 1.33 acres i.e. the suit land and as such it was not necessary to add the brothers and sisters of the plaintiff in the suit for declaration of right, title, interest and recovery of khas possession by evicting the defendants therefrom. It is also contended that the judgment debtors/petitioners were trespassers to the suit land that the learned trial Judge passed the decree after adjudicating the said matter. The learned senior counsel further submitted that the appeal, preferred by the judgment debtors/petitioners against the judgment and decree, having been dismissed, the judgment debtors cannot stall the execution of the decree on the said grounds, which were the grounds in the appeal. It is submitted at the Bar that the appeal filed by the judgment debtor/petitioners has already been dismissed by the appellate Court.