JYOTIBALA CHAKRABORTY Vs. HEM CHANDRA SARKAR

JUDGEMENT

(1.) In this civil revision the petitioners pray for expunction of certain observations made by the learned Additional District Judge in his judgment dt. 5-3-1983 in Civil Misc. Appeal No. 83 of 1982 to the effect that the decree is not executable at the instance of the first petitioner and that the land has been vested in the Government and that the decree is executable at the instance of the State Government and that the present first petitioner has ceased to have any right or interest over the land.

(2.) Mr. Sengupta, the learned counsel for the respondent raising a preliminary objection submits that the judgment in Civil Misc. Appeal No. 83 of 1982 was on an application for restitution under S.144, C.P.C., and it was in determination of the question of restitution. As defined in sub-sec.(2), S.2, C.P.C., a decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determined the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within S.144, but shall not include (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. It is submitted that the judgment wherein the observations objected to have been made is one of determination of a question within S.144, C.P.C., and as such it is appealable and no revision lies. This objection would have been upheld if the revision was directed against the determination itself. But this revision has not been so directed and instead it is for removal of certain observations which according to the petitioners have affected their rights and interest resulting in miscarriage of justice. This preliminary objection considered, in this line has, therefore, to be rejected.

(3.) Coming to the merit of the petition Mr. P. M. Chakraborty appearing in person refers me to the contents of the paras 16, 18, 19 and 21 of the judgment. In para 16 the learned appellate Court below observes that it is an admitted fact that possession of the decretal land has been delivered to the decree-holder-respondent in the year 1968 in execution of the decree of Title Suit No. 43 of 1959 which was confirmed by the Hon'ble Judicial Commissioner, Tripura, Agartala, and that an ex parte decision was made on 14-2-1975 in Misc. Case No. 10 of 1968 subsequently numbered as Misc. Case No. 24 of 1974 and by that ex parte decision the learned Subordinate Judge made a specific finding that decree became infructuous and it was not executable and the decree-holder was entitled to get restoration of the decretal land. Further that it is also an admitted fact that the said finding of the learned Subordinate Judge made in Misc. Case No. 10 of 1968 is still in force as the same was neither varied nor altered by the appellate authority or by revisional authority.