Decided on September 25,1985

Anil Kumar Sarkar And Others Respondents


K.N. Saikia, J. - (1.)The civil revision petitioner impugns the order of the Munsiff No. 1, Goalpara dated 19.6.85 rejecting his application under Sec. 47 of the C.P.C. being Miscellaneous case No. 5 of 1984 in Title Execution case No. 40/77. The plaintiffs opposite parties sued the petitioner's father Harbhajan Singh in Title Suit No. 49 of 1970 for ejectment from, and arrears of rent for the suit house being described as "a room with kitchen, laterine situated at Bongaigaon Town, P. S. Abhayapuri within the following boundaries: JUDGEMENT_6_LAWS(GAU)9_1985_1.html
(2.)The petitioner's father as defendant in his written statement contended that there was only one room of the plaintiff measuring 20' X 16' and in north of it there was vacant land and in pursuance of a contract with the plaintiff the defendant constructed houses thereon along with Sanitary Latrine and the defendant was in possession thereof and those houses were not the subject matter of the suit tenancy. The suit was however decreed and for execution thereof the plaintiff filed Title Execution case No. 40 of 1977 wherein the petitioner judgment debtor filed an application under Sec. 47 of the C.P.C. which having been summarily rejected the petitioner filed a revision which the High Court allowed and remanded the application with a direction to dispose it after giving appropriate hearing to the parties. In the remanded application, now registered as Misc. (J) case No. 5 of 1984, the opposite parties filed objections and examined four witnesses . The learned Munsiff also made a local inspection where after, hearing both the parties, rejected the application by the impugned order. Hence this revision .
(3.)Mr. J.N. Sarma, learned counsel for the petitioner submits, inter alia, that the learned Munsiff himself having found in course of his local inspection two six-roomed houses with bath rooms and latrines, one of the houses having been constructed in 1974, and these land and houses being different from those given in the decree, he ought to have held that the decree was not executable as something which was not included in the decree could not be delivered in execution of the decree. The decree, according to learned counsel, was therefore, not executable. Counsel mainly relies on AIR 1956 Supreme Court 359 and AIR 1979 Supreme Court 1745.

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