HARI SHANKAR PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) I have heard the learned Senior Counsel Mr. Shashi Shekhar Dwivedi on behalf of the petitioners and the learned Senior Counsel Mr. Siddheshwari Prasad Singh on behalf of respondent No. 2. This application under Article 227 of the Constitution of India has been filed by the petitioners for setting aside the order dated 27.7.2011 passed by Subordinate Judge 5th, Saran in Execution Case No. 1 of 2005 whereby the application filed by the petitioners on 16.9.2010 for appointment of Survey Knowing Pleader Commissioner for demarcation of the suit land prior to delivery of possession in favour of decree holder has been rejected.

(2.) The learned Senior Counsel Mr. Shashi Shekhar Dwivedi appearing on behalf of the petitioners submitted that at the spot the disputed property measuring 11 katthas 1 dhur is not identifiable and, therefore, the judgment debtors-petitioners filed the aforesaid application for appointment of Survey Knowing Pleader Commissioner but the learned court below rejected the same without considering the fact that if suit property is not demarcated no delivery of possession could be affected. Therefore, the learned court below has failed to exercise the jurisdiction vested in it by law and the petitioners shall suffer serious loss if Commissioner is not appointed to demarcate the suit property.

(3.) On the other hand, the learned Senior Counsel Mr. Siddheshwari Prasad Singh submitted that the decree holder respondent No. 2 filed the suit for declaration of title and eviction of the petitioners from the suit property wherein the State of Bihar was also party as defendant. The suit was decreed. The present petitioners neither appeared nor filed written statement nor contested the suit. The State of Bihar filed first appeal which was dismissed and thereafter second appeal was filed by the petitioners which was dismissed and then they filed Special Leave Application before the Hon'ble Supreme Court which too was dismissed. On the basis of the said decree of the Trial Court the decree holder respondent has filed execution case being Execution Case No. 1 of 2005. The petitioners filed objection under Section 47 of the Code of Civil Procedure in the execution case which was dismissed and then they filed Civil Revision No. 2189 of 2005 before the High Court. The said revision was dismissed on 5.3.2008. Against the said order the petitioners filed Special Leave Application before the Hon'ble Supreme Court being S.L.P. No. 13759 of 2008 which was again dismissed on 8.7.2008. The Special Leave Application against the judgment of the High Court in second appeal has been dismissed by the Apex Court on 25.8.2010. During this litigation the petitioners never raised the question that the suit property is not identifiable at the spot. In the schedule of the plaint the boundary of the property has been mentioned and the area has also been mentioned therefore, there is no dispute arises regarding the identity of the suit property. Moreover, the suit was filed in the year 1971 i.e. Title Suit No. 143 of 1971 but because of the delaying tactics of the petitioners judgment debtors still the delivery of possession could not be affected. The execution case is of the year 2005. The petitioners filed frivolous objections under Section 47 and went upto the Hon'ble Apex Court and they also did not file first appeal against the trial court's judgment but when the appeal filed by State of Bihar was dismissed they directly filed second appeal before the Hon'ble Supreme Court which was dismissed and then again on frivolous ground they went to the Hon'ble Supreme Court, In this way they are lingering the matter for about 40 years. Now when the order for delivery of possession has been passed by the executing court the petitioners have started third round of litigation and this frivolous application under Order 26 Rules 9, 10 C.P.C. has been filed with ulterior motive only to linger the litigation for another decade which is not maintainable. The Learned Counsel further submitted that under the supervisory jurisdiction the impugned order cannot be interfered with by this Court because the learned court below exercised the discretionary jurisdiction judicially.