Decided on July 02,1985

The State of Assam Appellant
Sri. Hossen Ali Respondents

Referred Judgements :-



K.N. Saikia, J. - (1.)THE opposite party was the owner of lands under Khatian Nos. 99 and 26. He instituted Title suit No. 379 of 1980 for an order to be issued by the Defendant, the State of Assam, enabling him to fell 84 Sal trees (30 on khatian No. 99 land and 54 on khatian No. 26 land) and to appropriate the trees. It was stated in the plaint that the Plaintiff wanted to get the Sal trees for his own use and he applied to the Forest Department to mark the trees as required under the Assam Forest Regulation and that after enquiry the Forest Department marked 54 trees of Khatian No. 26 land on or about 17.10.78. The suit was decreed on 31.1.83. The Plaintiff -opposite party's absolute right over the aforesaid 84 Sal trees was declared and Defendant, the State of Assam, directed to issue order in favour of the Plaintiff for cutting and removing 30 Sal trees on Khatian No. 99 land and 54 Sal trees on Khatian No. 26 land in Village Jaipur under Bilasipara Circle.
(2.)IT appears that there was some dispute about the Khatian lands which was claimed by the Forest Department on the basis of a declaration as forest land as far back as in 1966 notified in the Assam Gazette, while the opposite party obtained the Khatians in 1973.
The opposite party started Title Execution case No. 7/83 describing the State of Assam representing the Divisional Forest Officer, Dhubri as the judgment debtor and applied for survey of the land stating that without survey he could not fell the trees. Accordingly an Amin Commissioner was appointed who, however, reported that there were no Sal trees but only the stumps with hammer marks were found on the land. He found 54 such stumps. The opposite party informed that he had cut away 37 trees of Khatian No. 26 land but those were seized by the Forest Department. It appears that 10 number of trees were seized by the Forest Department on 10 -4 -83 and 21 numbers on 11.4.83 for the alleged commission of offences under the Assam Forest Regulation, 1891. On 23.7.83 the opposite party, as decree holder, prayed that the seized tress be attached and delivered to him. On 5.8.83 the Divisional Forest Officer (D.F.O.) filed objection on the ground that the trees were felled without hammer marks and Certificate of Origin (C.O.). On 12.8.83 the judgment -debtor was directed to put hammer marks and C.O. On 15.9.83 the Court passed order for transfer of the trees. On 21.9.83 the decree -holder/opposite party prayed for removal of 54 trees through the Nazir and the prayer was allowed. On 24.9.83 the attachment was executed and on 1.10.83 the decree holder received 37 Sal trees and prayed for further 17 trees out of which only 3 could be delivered on 29.1.84 as the rest 14 trees were not physically available and there were no record of felling these 14 number of trees.

(3.)ON 9.2.84 the opposite party/decree holder prayed for recovery of Rs. 69,200/ - as the value of the remaining 14 number of trees. On 17.2.84 the decree holder again filed a petition under Order 21 Rule 31 Code of Civil Procedure to recover the amount of Rs. 69,200/ - and for attachment of the judgment -debtor's movable properties by warrant of attachment. On 12.3.84 the judgment debtor filed objection under Section 47 Code of Civil Procedure contending that the executing Court could not go behind the decree and grant relief in terms of money. On 11.4.84 the impugned order was passed.

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