NABARAN SARKAR Vs. SUDHIR CHANDRA ROY

JUDGEMENT

(1.) This revision has arisen out of the order dated 28.8.2003, passed by the learned Civil Judge (Junior Division), Khowai, West Tripura District, in Execution (Title) No.1 of 2003, dismissing the application made by the judgment debtors i.e, the revision petitioners under section 47 of the Code of Civil Procedure (herein after referred to as the Code) challenging executability of the decree dated 27.5.2002, passed in TS No.9 of 2000.

(2.) Briefly stated, the material facts leading to the present revision may be stated as follows: (i) In TS No.9 of 2000 aforementioned, the present revision petitioners were impleaded as defendants. The suit was instituted by the present opposite party as plaintiffs, seeking, inter alia, for declaration of their right, title and interest over the suit property, described in the Schedule to the plaint, and recovery of khas possession by evicting the defendants therefrom. Though the revision petitioners received summons and entered appearance in the suit as defendants, they did not file their written statement, the suit proceeded exparte and culminating into the exparte decree passed, on 27.5.2002, in terms of the prayers aforementioned by the plaintiffs. When the decree was put to execution in Execution (Title) Case No. 1 of 2003 aforementioned, the judgment debtors- petitioners filed objection aforementioned contending, inter alia, that the decree was not executable, for the Schedule of the decretal land was not properly identifiable inasmuch as the decretal land is situated on the Northern side of Tuichindra Cherra whereas the boundary of the decretal land indicates that it is situated on the Northern side of Tuichindra Cherra. The decree holders-opposite party filed their objection to the judgment debtors' application made under section 47, the case of the decree holder being, in brief, that the suit land was actually situated on the Northern side of Tuichindra Cherra the suit land was correctly described in the plaint and was identifiable and that an objection, such as the one raised by the judgment debtors in the execution proceeding, ought to have been raised in the suit itself and not in the execution proceeding. (iii) Upon hearing the learned counsel for the parties, the learned executing Court passed the impugned order.

(3.) I have perused the materials on record including the impugned order. I have heard Mr. D. Chakraborty, learned counsel for the petitioners, and Mr. DC Roy, learned counsel appearing on behalf of the opposite party.