MADHURANI SINGH Vs. TARA BALA GHOSH

JUDGEMENT

(1.) PETITIONER is the assignee of the decree holder and had sought the execution of the decree as granted by the appellate court in respect of 15 decimals of land. It appears, originally the Suit was dismissed but the appellate Court substantially reversed the judgment and decree and granted decree in favour of the plaintiff - appellant in respect of 10 decimals of land while rejecting the claim in respect of 3 decimals of the suit property. This appellate decree is dated 3rd May, 1975. This was then appealed by the defendant unsuccessfully before this Court in Second Appeal.

(2.) The appellate decree thus became final was put in execution. In between, it appears that some of the original defendants died and they were substituted by Sri Subhash Chandra Ghosh and Sri Tara Bala Ghosh. Later Subhash Chandra Ghosh also expired and was substituted by others. The substituted persons are the opposite parties in this civil revision application. They first filed an application in terms of Section 47 of C.P.C. challenging the executability of the decree in Title Execution Case No. 1/1985 but the same was rejected by order dated 29.9.2001. They then preferred two civil revision applications before this Court (C.R. No. 2116 of 2001 and C.R. No. 14 of 2002) which met with the same fate by judgment and order dated 27.8.2002 being judgment of Nagendra Rai, J, as he then was, who clearly held that the heirs as substituted are to represent the case of the deceased and they are bound by the orders passed earlier. They cannot be allowed to raise new plea or new claim or even reagitate the same plea. That ordinarily should have ended all controversies as between the parties and made way for execution of the decree which had attained finality but it was not to be so and the trouble started thereafter. Pursuant to warrant of delivery of possession, various steps were taken, which have been noted in the order dated 3.7.2006 in the present proceedings. The executing court was reported that delivery of possession had been affected.

(3.) THE decree holder objected. He submitted that merely seeking the right of possession of a wall outside the premises wherein the land was situated was not sufficient as it did not amount to physical delivery of possession because the land in respect of which the decree had to be executed was somewhere within the boundary of the walled premises. The Executing Court by its impugned order dated 5.9.2005 rejected the contention of the decree Page 1527 holder and as the decree holder was left with no possession of any property whatsoever and the decree was said to have been executed in the said Execution Case No. 1/1985. He filed the present revision application before this Court.