LILA SABAR Vs. GOLAP SAIKIA

JUDGEMENT

(1.) DOES an objection hearing, on an application resisting execution of a decree, include the right to adduce evidence in support of such an application ? This is the moot question, which this second appeal has raised for determination.

(2.) TITLE Suit No. 28 of 1988 was instituted, as plaintiff, by the present respondent for declaration of his rights, title and interest over the suit land and for delivering of possession thereof by evicting the defendants therefrom. The suit was decreed on 30.8.1993 and the appeal preferred by the defendants, which gave rise to TA No. 06/94, was also dismissed, on 22.11.1999, by the learned Civil Judge (Sr. Divn.), Tezpur. In consequence thereof, the respondent, as decree -holder, put the decree, in question, for execution. Title Execution Case No. 09 of 2002 accordingly commenced. While the execution proceeding was so pending, the appellants herein made an application under Section 151 CPC claiming, inter alia, that though they had been in possession of the suit land, covered by the decree aforementioned, for long before the institution of the suit, they were not parties to the suit and with the help of the decree aforementioned, they were sought to be evicted from a portion of the suit land, which had so been in their occupation. The decree -holder on 17.11.2000, filed his objection to the application so made by the present appellants. The learned executing Court fixed the application of the present appellants for objection hearing and the matter was accordingly heard on 30.3.2001. Upon hearing the learned counsel for the parties, the learned Executing Court vide order, dated 30.3.2001, dismissed the application of the appellants and directed the decree -holder to take further steps for execution of the decree/Aggrieved by the order, dated 30.3.2001, aforementioned, the present appellants had impugned the same in Misc. Appeal No. 04/2001. This appeal failed and was accordingly dismissed by judgment and order, dated 11.12.2001, passed by the learned Civil Judge (Senior, Division), Sonitpur, Tezpur. Impugning, the orders, dated 30.3.2001, as well as the order, dated 11.12.2001, aforementioned, the appellants have, now, approached this Court with the help of this second appeal.

(3.) WHILE considering the submissions made on behalf of the appellants, it is imperative to note that the application made by the appellants in the execution proceeding resisting the execution of the decree was made on the ground that the appellants therein had been in possession of the suit land covered by Title Suit No. 28/98 aforementioned and that without their having been made parties to the suit, the decree obtained therein was sought to be executed against them too. After filing of the objection by decree -holder to the application so made by the appellants, the same was fixed for objection hearing. The objection hearing obviously included hearing on the merit of the application made by the appellants and the hearing on the merit included, undoubtedly, adducing of evidence too. When the learned executing Court had fixed the application, in question, for hearing, the appellants could have adduced evidence in support of their said application. It cannot, therefore, be said that the appellants could not have adduced evidence.