LALMUNI DEVI Vs. SHIV SHANKER TIWARY

JUDGEMENT

(1.) This is an appeal under Section 47 of the Civil P. C. by the decree holders and arises out of an order passed on an objection petition filed by the judgment-debtors-respondents first party, in the execution court, objecting to the delivery of possession of a house in pursuance of a compromise decree between the parties.

(2.) It appears from the facts stated in the compromise decree that the decree-holder Bhagwat Prasad Tiwary, ancestor of the appellants, and Saryug Tiwary, respondent second party, besides being members of a joint family which possessed various landed properties at various places, were also carrying on certain business in partnership. It further appears that some dispute having arisen between the parties, Saryug Tiwary instituted a suit in the year 1964 on the original side of the Calcutta High Court for various declarations and dissolution of some business. In that suit a compromise decree was passed on 29-2-1968. In accordance with the said compromise, properties mentioned in Part II in Schedule A were allotted to Bhagwat Tiwary and those mentioned in Part I of the said schedule to Saryug Tiwary. Some properties, however, were left joint. The two houses, one situated in the town of Calcutta and the other in the village home of the parties at Manpura in the district of Saran, were incorporated in the said compromise decree. Whereas the Calcutta house was allotted to the branch of Saryug Tiwary being described in Item No. 71, the ancestral house in village Manpura was allotted to the branch of Bhagwat Tiwary. It was described in Item No. 46 of the relevant schedule as follows :-- "A pucca brick built house at village Manpura P.S. Ravelganj, District Chapra (Saran)" It is not disputed that this house property was not originally included in the suit but formed part of the compromise by consent of the parties. The decree, however, was registered. The respondents first party who are none else than the sons and wife of Saryug Tiwary, besides being parties to the suit were also parties to the compromise having signed the compromise on their own behalf, but it was stated that they were merely benamidars and had no interest in the properties. After the compromise decree was duly registered, the decree-holders got it transmitted to Chapra for effecting delivery of possession of the aforesaid item No. 46, namely, the ancestral house which lay within the territorial jurisdiction of the court below. The decree was accordingly transferred and Execution Case No. 14 of 1978 was registered in the Court of the First Subordinate Judge at Chapra. The respondents first party in their objection petition raised the following objections: (1) The property as mentioned in the decree was vague and unidentifiable, (2) it was not the subject matter of the suit, (3) the Calcutta High Court had directed for execution of the decree only against Saryug Prasad Tiwary (defendant No. 1) and not against his heirs and (4) the compromise decree was only declaratory in nature and no delivery of possession could be effected under such decree. A rejoinder was filed on behalf of the appellants controverting the pleas of the objectors. The executing court, however, allowed the objection petition and recorded the following findings: (1) The decree was vague as the property in question was not identifiable and (2) in view of the direction of the Calcutta High Court the decree could not be executed against the respondents first party. The other objections that the property having not formed part of the suit, could not be included in the decree and the nature of the decree was merely declaratory and unexecutable were rejected. These points were, however, also strongly pressed by Mr. Lakshman Saran Sinha, appearing for respondents first party before us.

(3.) I will first consider the argument regarding the vagueness of the decree. Mr. Kailash Roy, learned counsel appearing for the appellants, invited our attention to the statements made in the objection petition filed by the respondents first party. In para 11 of the objection petition it is stated that in village Manpura, the ancestral village home of the parties, over plot No. 1133 two houses were situate, one being towards the north and the other towards the south, but their area was not identified. They also delineated the two houses aforesaid in a sketch map appended to their objection petition. Mr. Kailash Roy contended that one of the aforesaid houses was pucca and the other was kacha and in this view of the matter, when item No. 46 described the property that what was allotted to the decree-holder was "a pucca brick built house", the property became obviously identifiable and absence of other particulars with reference to its plot number and boundary etc. did not matter as the description in para 19 of the compromise petition and in serial No. 46 of the schedule referring the house as pucca brick built house, was sufficient for identifying the same. Learned counsel indicated his willingness and readiness for appointment of a pleader commissioner if it was thought so necessary by the executing court to find out the physical features of both the houses so as to examine as to whether the above description, namely, "pucca brick built house" was by itself sufficient to exclude the other house unmistakably. He also contended that the description of the house allotted to Saryug Tiwary in serial No. 71 of his schedule was also described in brief as "premises No. 6, Mot Lane, Calcutta-13".