RAMESWAR DAS Vs. JOGESWAR KALITA

JUDGEMENT

(1.) THIS revision petition is filed by the decree holders/petitioners challenging the judgment and order dated 05. 06. 1999 passed by the Civil Jude, Senior Division No. 1, Kamrup, Guwahati in Misc. (J) Case No. 126/94 arising out of the Title Execution Case No. 12/80. By the impugned order, the learned Executing Court accepting the objection of one of the decree holders "extinguished" the decree which is sought to be executed in the Execution Case No. 12/80.

(2.) FOR the purpose of disposal of this revision petition, following brief narration of fact is considered necessary. In the year 1959, the T. S. No. 32/59 was filed by the plaintiffs/decree holders against the defendants/opposite party praying for declaration of the right, title and interest over the suit land and for khas possession thereof by ejecting the defendants. The suit property as described in the schedule of the plaint is an area of land measuring 6 B 4 L covered by Dag No. 688, periodic patta No. 66, situated at village-Kokjhar under Mouza-Chayani in the district of Kamrup. The said suit was decreed, on contest by the then Sub-Judge, Gauhati on 23. 12. 1963. Aggrieved defendants challenged the said decree up to the High Court and the High Court vide judgment and order dated 14. 02. 1969 passed in SA No. 28/66 also confirmed the decree dismissing the appeal. The said decree was put into execution by filing the Title Execution Case No. 12/80 before the learned Additional District Judge No. 1, Guwahati on 21. 11. 1980. In the Execution proceeding, one of the judgment-debtors namely, Jogeswar (Kalita) Das, filed an application under Section 47 of the CPC claiming inter alia that one of the decree holders, namely, Dharmeswar Das having entered into an agreement for sale in his favour on 13. 05. 1982 promising to sale 2 Bighas of the decreetal land at consideration of Rs. 12,000/- and by taking Rs. 5000/- as advance and later on the said agreement for sale could not be implemented fully by transferring the land covered by the said agreement in his favour due to the death of Dharmeswar Das and on refusal of his legal heirs to accept the same, he is protected under Section 53a of the Transfer of Property Act and as such, the decree itself is not executable and the Execution Case is liable to be dismissed. The said application was registered as Misc. (J) Case No. 126/94. The schedule incorporated in the aforesaid agreement for sale dated 13. 05. 2002 shows that the said agreement relates to an area of land measuring 2 Bighas of land covered by Dag No. 815 and periodical patta No. 159 situated at village-Kokjhar under Chayani Mouza out of the total area 6 Bigha 4 Lechas. The specific boundary of the land covered by the agreement is also provided in the said agreement. The decree holders registered (resisted, sic) the same and filed objection. The learned Executing Court, recorded the evidence of 2 witnesses on behalf of the judgment-debtor and after hearing the parties, vide impugned judgment and order dated 05. 06. 1999, allowed the Misc. Case and held that in view of the agreement dated 13. 12. 82 (Exhibit 1) the decree sought to be executed has been "extinguished" and consequently closed the execution case. Challenging the said judgment and order, the present revision petition has been filed.

(3.) I have heard Mr. B. K. Goswami, learned Senior Counsel assisted by Ms. T. Goswami, learned counsel for the decree holders/petitioners and Mr. A S Choudhury, the learned Senior Counsel assisted by Ms. M. Dev, learned counsel for the judgment-debtor/opposite party.