- (1.) This revisional application is directed against an order dated February 6, 2010 passed by the learned Civil Judge (Junior Division) 3rd Court at Howrah in Title Execution Case No. 15 of 2009. By virtue of the impugned order the learned Court below postponed the verification for that date.
(2.) The decree holder/petitioner filed a Title Suit No. 204 of 1996 against the judgment debtor/opposite party for his eviction before the learned Civil Judge (Junior Division) 3rd Court at Howrah. THE above suit was decreed on July 17, 2008. THE opposite party preferred an appeal bearing Title Appeal No. 165 of 2008 before the learned District Judge at Howrah and the same was dismissed on May 30, 2009 affirming the judgment and decree passed by the learned trial Court. THE petitioner put the decree into execution being Title Execution Case No. 15 of 2009 on July 18, 2009. During the pendency of the above execution proceeding the Second Appeal bearing S.A.T. No. 439 of 2009 preferred by the opposite party was dismissed on September 4, 2009. THE opposite party filed an application under Section 47 of the Code of Civil Procedure in the above execution proceeding for rejection of execution case on the ground that there were serious of discrepancies in identifying the scheduled noted property. Necessary to mention here that no discrepancy was mentioned specifically in the above application in support of the above claim by the opposite party. It is submitted by the learned Counsel appearing for the decree holder/petitioner that the matter reached its finality after dismissal of the Second Appeal bearing S.A.T. No. 439 of 2009 preferred by the opposite party. It was not open for the opposite party to stand in the way of executing the above decree by way of filing an application under Section 47 of the Code of Civil Procedure on frivolous ground. He further submits that the legality of the decree cannot be challenged in execution of the, proceeding /on the ground of bar of constructive res judicata in view of the explanation (Vii) added to Section 11 of the Code of Civil Procedure. The learned Counsel relies upon the decisions of Sardar Estates v. Atma Ram Properties (P) Ltd., 2009 6 SCC 609; Haryana Vidyut Parasaran Nigam Ltd. v. Gulshan Lal, 2010 1 ICC 151 and Anil Kumar Biswas v. Subodh Chandra Paul, 2010 1 CalHN 50.
(3.) It is submitted by the learned Counsel appearing on behalf of the opposite party that in the event of discrepancy in identifying or in substance of the schedule property, an application under Section 47 of the Code of Civil Procedure has to be disposed of before putting the decree to execution. IT is submitted by him that the direction may be given for expeditious disposal of the above application of the opposite party before executing the decree under reference. In support of the above submissions, the learned Counsel appearing for the opposite party relies upon the 'decisions of Jai Narain Ram Lundia v. Kedar Nath Khetan and Ors., 1956 AIR(SC) 359 Brahmdeo Chaudhury v. Risikesh Prasad Jaiswal, 1997 AIR(SC) 856 Mr. P/7/a/v. P.K.U. Naidu and Ors., 1968 AIR(Mad) 433 and Moot Chand Yadav and Anr. v. Raja Buland Sugar Co. Ltd, Rampur and Ors., 1982 3 SCC 484.;