B.M.Mitra, J. - (1.) -
(2.) THIS revisional application against Order No. 15 dated 3rd June, 1994 passed by the Munsif, 2nd Court at Baruipur in Execution Case No. 22 of 1993 is taken up for hearing which at the motion stage has seriously been opposed by Mr. Dasgupta appearing on behalf of the Caveator. Mr. Das, the learned Advocate appearing for the petitioner, has made his submission by drawing attention to this Court to some of the annexures annexed to the petition from which he submits that the other decree-holders are not objectors with regard to continuation of consumption of electricity through the existing pole situated on the pathway which is a private one forming part of the suit property. According to Mr. Das, the same should be taken note either as a subsequent event or a changed circumstance and the executing court without determining the same properly should not have passed the impugned order. In support of the submission Mr. Das has referred to a decision of our High Court reported in AIR 1978 Calcutta, page 193 in the case of Ramcharan Sikdar v. Jogmaya Basu and Anr., wherein the Court opined that the executing Court was within its right to pass appropriate orders for removal of the obstruction in order to give effect to the decree passed by the Court. Mr. Dasgupta, the learned Advocate appearing on behalf of the Caveator/Objector, contended that the case as cited above does not squarely faintish (sic) the facts and circumstances of the instant case and also the ratio of law expounded therein does not help the petitioner. Mr. Dasgupta's principal submission is on the footing that nature of decree is one of relief of injunction and the caveator objector has the right to appropriate and/or to enjoy the usufruct and/or the fruits of the said decree and/or the order of injunction as he has the absolute right with every inch of land and no cloud can be created by the conduct of the other decree-holders and his rights cannot made a casualty at the altar of sacrifice mainly made by the other decree-holders. Mr. Dasgupta has contended with force that there cannot be any affectation of the right of a co-sharer of a decree of injunction by a third party or an outsider. Mr. Dasgupta has further drawn specific attention of this Court to the provisions incorporated under Order 21, Rule 2, sub-rule (3) of the Code of Civil Procedure and according to him that unless adjustment and/or payment has been certified or recorded in terms of the pending clauses in the aforesaid Rule, no recognition and/or cognizance can be taken of the same by the Court executing the decree. Mr. Dasgupta further referred to the provision of Article 125 of the Limitation Act to point out that the period of limitation prescribed therein is for 30 days and that not having been done therefore the petitioner has missed the bus and his plea is not entertainable in law. Thereafter Mr. Dasgupta has referred to a decision of this Court in Durgadas Nandi v. Deoraj Agarwalla reported in 10 CWN page 297 and Mr. Dasgupta has drawn the attention of the Court to the observation made by Sir Ashutosh Mukherjee, J. to the effect that when there is possibility of the absent decree-holder being prejudiced by reason of an order for execution made on the application of other decree-holder it is not obligatory upon the court to issue a notice upon him. Such reference was made by Mr. Dasgupta to draw a line of parity of nexus in between case only to convince this Court that anything done by the other decree-holders as a result of which their rights are not threatened to be affected then their role become insignificant as they cannot be permitted to create a cloud with regard to the cosharer's right. Mr. Dasgupta has also referred to a decision of the Apex Court in the case of Harihar Prasad Singh and Ors. v. Balmiki Prosad Singh reported in AIR 1975 SC Page 733 where the Supreme Court has laid down that there cannot be any conflict between the decrees granted in favour of different plaintiffs as the decree is a combination of many decrees. It is needless to reiterate in this context following the catena of cases of Full Bench decision of Allahabad High Court that it has been constantly the view of the Courts in India that decree is a concept of composite totality and the same is not capable of being fragmented and/or being split up. In view of the submission made by Mr. Dasgupta it is pertinent to take note of the nature of the decree and this Court is of the view that such subsequent events cannot be looked into by the executing Court unless they come within the parameter of Order 21 Rule 2 of the Code of Civil Procedure head with Rule 13 thereof. Accordingly, this revisional Court does not find any irregularity in the impugned order as the learned Munsif did net take into account the purported arrangement made between the petitioner and the other co-sharers outside the Court because they will not manifestly come within the ambit of changed circumstances of subsequent events within ambit of specified rules as mentioned hereunder. As such there is no jurisdictional infirmity in the impugned order for which the same is capable of being interfered with. THIS Court is left with no other alternative but to dismiss the revisional application though Mr. Das, the teamed Advocate appearing on behalf of the petitioner has succeeded to evoke some sympathy of this Court because of his affectation of right of necessity emanating from supply of electricity. Mr. Das has also triad to convince this Court because of the attitude taken by other co-shares his client was pursuaded to take such a move but there was no intentional premediated design on his part to tinker with or to disobey the decree standing against his client. Therefore for the ends of justice it is proposed that the caveator objector will put in the required amount in the executing court so that electric poles may be removed from the pathway by the appropriate authorities and he will not claim any refund of the same provided no further obstruction is created in the said process of the removal of electrical pole subject to co-operation rendered by the petitioner in removal of the electrical pole from the private pathway belonging to the decree-holder and in the cooperation in the said process the caveator objector who is present in court has assured that he would not pursue the attachment any further so that there can be respectable burial of entire hatchet of controversy so that they can amicably live as good neighbour. Attachment, if any, will automatically stand lifted after removal of poles and wire lines. Them shall, however, no order as to costs. Let xerox copies of this order be made available to the parties on usual undertaking and upon compliance of necessary formalities. Order accordingly.;