PRIYABRATA DAS Vs. CENTRAL BANK OF INDIA

JUDGEMENT

(1.) The petitioner/appellant has preferred both the appeal and revision against the JUDGMENT & ORDER dated 11.2.88 passed by the Assistant District Judge, Sonitpur, Tezpur in Misc. Case No. 72/86 which was preferred for restitution u/s 144 CPC and Misc. Case No. 29/69 preferred u/s 47 CPC on the same day by different orders and judgment.

(2.) The backdrops of both the cases are like this, - the Gauhati Bank Ltd. instituted Title Suit No. 35/54 in the Court of Sub Judge, Nowgong against the predecessor in interest of appellant petitioner for realisation.of Rs. 1,05,000/- including interest praying for decree of sale and mortgaged immovable property, comprising 1 Bigha 13 Lechas of land under Dag No. 1081 of periodic Patta No. 392 of Tezpur town together with houses etc. thereon. The suit was decreed by order dated 26.8.55 and decree holder Bank instituted Execution Case No. 6/56 which was dropped after payment of Rs. 6,740/- but again title execution No. 4/59 started in Nowgong Court wherein the above mentioned property was sold in auction and the decree holder purchased the same on 20.5.61. The judgment debtor filed objection and after his death on 15.11.61, the execution case was transferred to Tezpur Court and renumbered as title execution 7/65. By order dated 3.5.66 said objection petition was dismissed by confirming the sale. the contention of the appellant/petitioner is that the decree holder filed, an application under Order 21, Rule 95 CPC, notwithstanding the talk of compromise held on 6.8.88, wherein the decree holder purchaser agreed not to insist recovery of possession with condition that if the judgment debtor made further payment of Rs. 30,000/- and that on such payment the decree holder would treat the decree as satisfied, that accordingly an amount of Rs. 5,000/- out of Rs. 30,0007- had been paid. On report to the Court, decree holder was directed to report the same on next date. A report signed by the agent of the decree holder Bank has been submitted indicating consent to finalise the agreement and the process server returned the writ of delivery of possession unexecuted whereof the execution case was dismissed on 30.5.69. But subsequently the Court passed order for delivery of possession on the basis of an application of the decree holder/auction purchaser which was registered as Misc. Case No. 29/69. As emerges from the contents of the petition and submissions of the learned counsel for the appellant petitioner, an affidavit was filed by one P.C. Das, I.T. Advocate, Tezpur, agreeing to purchase half of the property of Rs. 25,000/- which, it is contended, was done at the insistence of the decree holder before executing Court and the decree holder wrote a letter Ext-14 agreeing to finalise agreement in persuance of letter of decree holder (Ext- 12), and the minutes of meeting for compromise (Ext-13) has been made. But inspite of all these, it is alleged, decree holder filed a petition on 6.5.68, for issuance of process of delivery of possession against which, the appellant petitioner filed an application with affidavit (Ext-6 and 7) praying for stay of the proceedings until finalisation of talks and the same having failed the judgment debtor filed objections u/s 47 CPC (Ext-8) against the said application for delivery of possession and the same was rejected by order dated 29.11.69. Against this MA(F) No. 15/70 was filed and the same was allowed with direction to the executing Court to adjudicate the Misc. Case No. 29/69 on merit. But due to the default of the judgment debtor, ultimately the executing Court proceeded with the execution proceeding and delivery of possession was taken by the decree holder/auction purchaser vide his orders dated 30.8.73, 27.11.73 and 8.11.73. Against the rejection of the petition u/ s 47 CPC another MA(F) No. 5/74 had been preferred and the High Court quashed the said orders dated 30.8.73 and 27.9.73 directing the Court below to decide Misc. Case No. 29/69 on merit. In that proceeding Lakshmi Prasad Lahkar, respondent No. 2 filed objection and after his death his legal representatives were substituted. Late Lakshmi Prasad Lahkar demolished the house and raised some construction on the land. By order dated 16.6.86 MA(F) No. 5/74 was allowed and the delivery of possession was set aside remanding the matter to teear the objection u/s 47 CPC. On 11.2.88 judgment in Misc. Case No. 29/69' rejecting the objection u/s 47 CPC was passed and on the same date Misc. Case No. 72/86 in which application for restitution of the property was preferred was also rejected and therefore both the appeal and revision have been tfiled.

(3.) As both the appeal and revision are against the execution proceeding, that is, Title Esecution No. 4/59 (No. 6/56) I decide to dispose of the same by the same judgment.