JOGMAYA DEB Vs. SUCHITRA BALA PAUL

JUDGEMENT

(1.) It is trite to say that a decree-holder is entitled to reap the fruits of the decree. But at the same time, I am reminded of the dicta of the Privy Council where the Privy Council pointed out that in India it may be easy to obtain a decree, but it is difficult to reap the fruits of the decree. This particular Civil Revision depicts that picture, But Mr. Lahiri, learned counsel appearing for the petitioner rightly contended that the decree-holder is entitled to get the decree executed for the property for which the decree is passed, but in the process of execution, it is the bounden duty of the Court to find out that the decree-holder does not get the possession of something for which no decree is passed. But at the same time, the law is also settled that during the pendency of a suit if the nature of the property for which the suit instituted is changed by cunning and resourceful judgment-debtor that should not be a ground to refuse to execute the decree. It is the bounden duty and obligation of the executing Court to execute the decree for the decretal property and an executing Court should not lose its sight in executing the decree to give the benefit to the decree-holder. In this particular case, decree was passed for a house as described in the schedule of the plaint. The original holding No. was 235 of Ward No. 10 at Hospital Road, Silchar and even the property was described with boundaries thereon. The petitioner herein filed and application before the executing Court for issue of Commission for local inspection under Order 26 Rule 9 read with Rule 18(a) to survey, investigate and measure the suit property with reference to the description as mentioned in the schedulte of decree. That application is Annexure-II to this revision application. Ani objection was filed against this application by the decree-holder. The learned Munsiff by the impugned order dated 8.4.94 rejected that application holding that the suit property is correctly described and that the decretal house is identifiable and that there is no need for appointment of a Commission. Having arrived at this finding, the application for local inspection filed by the judgment-debtor was rejected.

(2.) I have heard Mr. N.M. Lahiri, leamed counsel for the petitioner and Mr. A Roy, learned counsel for the opposite party.

(3.) The purpose of Order 26 Rule 9 is to make a local investigation for the purpose of elucidating any matter in dispute. Here the executing Court came to the findings that the decretal property is identifiable and in that view of the matter, the Court rightly rejected the application for local investigation because the Court acquires the jurisdiction to issue local investigation only for the purpose of elucidating any matter in dispute. Here is a case where the executing Court; came to the categorical finding that the decretal property is identifiable and in the view of the matter, it felt that there was no need to appoint a commission, and accordingly, I do not find any merit in this revision application and the same is rejected. As it is an old decree, the executing Court shall do the needful to execute the decree according to its true temore.