- (1.) JOURNEY of the judgment debtor/petitioner undertaken right from the first appellate Court till the Supreme Court to have the decree for eviction passed by the Trial Court against him on March 31, 1995 on a suit instituted in 1991 failed to yield any fruitful result. In the meanwhile, the decree-holder/opposite party put the decree into execution giving rise to Title Execution Case No.6 of 2002. After dismissal of the petition for special leave, the judgment-debtor/petitioner did not accept the decree with grace. His indomitable desire to continue to remain in possession of the suit property resulted in presentation of a petition under Section 47 of the Civil Procedure Code (hereafter the Code) dated July 29, 2006 before the executing Court, giving rise to Misc. Case No.27 of 2006. It was claimed therein that only on July 15, 2006, he came to learn that the decree-holder/opposite party was not the owner of the suit property; it was the State Government that owned the same. An order was thus prayed to declare the decree a nullity and thus not executable.
(2.) THE decree-holder/opposite party filed his objection contending that the petition under Section 47 of the Code was nothing but a ploy of the judgment-debtor/petitioner to drag the execution proceeding. The decree-holder/opposite party also filed a petition before the executing Court to decide the maintainability of the Section 47 petition filed by the judgmentdebtor/ petitioner on February 2, 2008. The said petition was taken up for consideration by the executing Court and by an order dated August 19, 2010, the Section 47 petition was dismissed on contest. This order is under challenge in this application under Article 226 of the Constitution.
(3.) LEARNED advocate for the judgment-debtor/petitioner reiterated the contention raised before the executing Court to the effect that since the decree-holder/opposite party is not the owner of the suit property, the decree that he obtained is a nullity. It was further contended that the executing Court acted illegally in the exercise of its jurisdiction by dismissing the Section 47 petition without receiving evidence. Referring to the order sheet, it was pointed out by the learned advocate that the petition filed by the decree-holder/opposite party questioning maintainability of the Section 47 petition on the ground of limitation was taken up for consideration on August 19, 2010 and in dismissing the Section 47 petition not on the ground of limitation, but on merits, the executing Court deprived the judgment debtor/petitioner reasonable opportunity to place his version. It was also contended that the plaint that was filed before the trial Court did not contain any schedule describing the suit property and there being no proper identification of the suit property, the plaint itself was liable to be rejected. The trial Court ought not to have passed the decree in respect of the property in occupation of the judgment-debtor.;