GAJENDRA DHAR Vs. NANI GOPAL GHOSH

JUDGEMENT

(1.) This civil revision petition has arisen out of and is directed against the judgment and order dated 21.9.1995, passed by the learned Asstt, Dist. Judge, North Tripura, Kailashahar in case No. Misc. 8 of 1995 arising out of case No, Execution (T) 1/ 94. The aforesaid order dated 21.9.1995, was passed on an application .which was submitted by the petitioner, Gajendra Kr. Dhar, before the Asstt. District Judge, North Tripura, Kailashahar under Section 47 read with Section 151 of the Civil Procedure Code (C.P.C.) questioning the executability of the decree passed by the learned Munsiff, North Tripura, Kailashahar in Title Suit No. 81/62.

(2.) Mr, A.K Bhowmik, learned senior counsel appearing on behalf of the petitioner, Gajendra Kumar Dar, in this proceeding questioned the competence of the learned Executing Court for entertaining the execution proceeding which was per se time barred. Mr. Bhowmik, the learned senior counsel, after pointing to the schedule of the plaint as well that of the decree, submitted that in the absence of cadestral Survey, Khatian Number, Plot Number and Holding Number of the suit land, it would not be possible to identify the decretal land and on that count alone, the decree became unexecutable. Mr. A.K. Bhowmik, the learned senior counsel appearing on behalf of the petitioner, in support of his case placed reliance on the decisions of the Supreme Court in the case of Brahmdeo Chaudhary v. Rlshikesh Prasad Jaiswal; Mustt. Kitabjan Bibi & Anr. v. Ramlal Durgadutta; and in Shanti Debi Nai v. Harikrishna Nathani.

(3.) Mr. D.K Biswas, learned counsel appearing on behalf of the opposite parties, firstly, questioned the legitimacy of the claim of the petitioner on the ground that the petitioner claims his right on the basis of the alleged purchase of the land by a registered Sale Deed dated 26.2.1972, i.e., six years after the judgment and decree as passed in Title Suit No 81/62. Mr. Biswas, the learned counsel further submitted that at any rate whether the execution proceeding was within time was not to be adjudicated for the first time in a Civil Revision, more so, when the point was not raised before the learned Executing Court Whether the execution proceeding is within time or not is a question of fact as well as law and, therefore, the petitioner cannot be allowed to agitate those issues at the belated stage, submitted Mr. Biswas. The learned counsel for the oppsite parties also pointed out that the schedule of the land was clear and specific. The lands shown in the decree are covered by natural boundaries and, therefore, question of difficulty in identification of the lands cannot arise. Since the Executing Court at all relevant time, was acting within its jurisdiction and in accordance with law, question of interfering under Section 115 of the CPC does not arise, submitted Mr. Biswas.