MAHAVEER PRASAD SAH Vs. OM PRAKASH SAH VIDYALANKAR

JUDGEMENT

(1.) The instant petition has been filed by the petitioner under Article 227 of the Constitution of India seeking following reliefs :-

(2.) Briefly stated, the facts of the case are that the petitioner and the respondents were members of joint Hindu family who owned and possessed the suit land appertaining to Khata No.782, area 9 ' decimals. After family partition, the petitioner got his share in the joint family property. The respondents filed Title Suit No.19/1996 before the court of learned Sub Judge, Lakhisarai for declaration of title with respect to Khata no.782, area 9 ' decimals and the suit was decreed in favour of the respondents. Thereafter, the respondents filed Eviction Suit No.2/2004 which was also decreed on 4/6/2010 in their favour and, thereafter, the respondents filed Execution Case No.02/2010 which is still pending. In the Execution Case No.02/2010, the respondents filed an amendment petition for amendment of description of the house regarding which they have sought delivery of possession, but the said amendment petition was dismissed on 17/8/2015. The petitioner filed Misc. Case No.01/2016 under Sec. 47 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') on 28/1/2016 and on 21/4/2016 initial objection regarding maintainability was raised by the respondents and after hearing the parties, the learned court below vide order dtd. 21/4/2016 held the miscellaneous case to be maintainable. The petitioner contended that decree under execution had wrong entry regarding description of house in khesra number as well as area which have been wrongly mentioned with wrong boundary. It means identity of the suit property which is subject matter of the decree and execution proceeding is vague and suffering from ambiguity and hence, the decree became in-executable. Therefore, it was requested that an inquiry be made to ascertain whether decree under Execution Case No.02/2010 is executable or not. The petitioner further submitted before the learned court below that regarding the disputed area of the property over which the execution case was pending, the Commissioner should be appointed to measure the property under execution and submit a report. Subsequently, vide order dtd. 23/10/2016, the executing court passed an order to stay the execution case till further orders. Thereafter, vide order dtd. 17/8/2017, the executing court passed another order for analogous hearing of miscellaneous case and execution case holding that the executing court has jurisdiction to determine all the questions and parallel miscellaneous proceeding was nothing but to misuse of the process of the court. During the pendency of the miscellaneous case, the petitioner filed four petitions on 25/10/2019 and 23/11/2019 for issuance of order of delivery of possession in accordance with the decree after cancellation of earlier issued delivery of possession order and also for appointment of survey knowing pleader commissioner. As all the petitions were of similar nature, the learned court below heard them together and rejected all the petitions by a common order dtd. 30/11/2019, which is under challenge before this Court.

(3.) The learned counsel for the petitioner submitted that the impugned order is erroneous and there is difference between the order passed by the learned appellate court and the factual status of the land in question. The learned appellate court in its decree specifically ordered to vacate two storied building along with 106 feet x 23 feet land having total area 2438 sq.ft., whereas factual position is that judgment debtor has one storied house along with 2696 sq.ft. The learned counsel further submitted that Rule 459 of the Civil Courts Rules prescribes procedure for institution of miscellaneous case. When an objection is filed under Sec. 47 of the Code then the court has to follow Rule 459 of the Civil Courts Rules and also as per Sec. 141 of the Code, all the procedures which are applicable to the suit will be applicable to the miscellaneous proceeding as well. So, the miscellaneous case filed by the petitioner should be treated like suit and the court has to record evidence of the parties and, thereafter, the court has to decide the objection under Sec. 47 of the Code and, thereafter, it has to give finding as to whether the decree is executable or not. Reliance in this regard is placed on the decision in the case of Most. Sanjha Devi vs. Amar Yadav reported in 2007 (4) PLJR 727, Jugal Kishore Khetan vs. Mohan Lal Khetan reported in 2009 (4) PLJR 651.