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Smt. Jyotibala Chakraborty Vs. Hem Chandra Sarkar - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 10 of 1983
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115
AppellantSmt. Jyotibala Chakraborty
RespondentHem Chandra Sarkar
Appellant AdvocateP.M. Chakraborty in person
Respondent AdvocateD.B. Sengupta, Adv.
DispositionPetition rejected
Prior history
K.N. Saikia, J.
1. In this civil revision the petitioners pray for expunction of certain observations made by the learned Additional District Judge in his judgment dt. 5-3-1983 in Civil Misc. Appeal No. 83 of 1982 to the effect that the decree is not executable at the instance of the first petitioner and that the land has been vested in the Government and that the decree is executable at the instance of the State Government and that the present first petitioner has ceased to have any right or
Excerpt:
- .....misc. case no. 10 of 1968 subsequently numbered as misc. case no. 24 of 1974 and by that ex parte decision the learned subordinate judge made a specific finding that decree became inf ructuous and it was not executable and the decree-holder was entitled to get restoration of the decretal land. further that it is also an admitted fact that the said finding of the learned subordinate judge made in misc. case no. 10 of 1968 is still in force as the same was neither varied nor altered by the appellate authority or by revisional authority.4. thus we find that in para 16 the learned court only referred to the earlier judgments relating to the same dispute.5. in para 18 the learned court observes that from the records it appears that shri hem chandra sarkar was never recognised as tenant or.....
Judgment:

K.N. Saikia, J.

1. In this civil revision the petitioners pray for expunction of certain observations made by the learned Additional District Judge in his judgment dt. 5-3-1983 in Civil Misc. Appeal No. 83 of 1982 to the effect that the decree is not executable at the instance of the first petitioner and that the land has been vested in the Government and that the decree is executable at the instance of the State Government and that the present first petitioner has ceased to have any right or interest over the land.

2. Mr. Sengupta, the learned counsel for the respondent raising a preliminary objection submits that the judgment in Civil Misc. Appeal No. 83 of 1982 was on an application for restitution under Section 144, C.P.C., and it was in determination of the question of restitution. As defined in Sub-section (2), Section 2, C.P.C., a decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determined the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. It is submitted that the judgment wherein the observations objected to have been made is one of determination of a question within Section 144, C.P.C., and as such it is appealable and no revision lies. This objection would have been upheld if the revision was directed against the determination itself. But this revision has not been so directed and instead it is for removal of certain observations which according to the petitioners have affected their rights and interest resulting in miscarriage of justice. This preliminary objection considered in this line has, therefore, to be rejected.

3. Coming to the merit of the petition Mr. P. M. Chakraborty appearing in person refers me to the contents of the paras 16, 18, 19 and 21 of the judgment. In para 16 the learned appellate Court below observes that it is an admitted fact that possession of the decretal land has been delivered to the decree-holder-respondent in the year 1968 in execution of the decree of Title Suit No. 43 of 1959 which was confirmed by the Hon'ble Judicial Commissioner, Tripura, Agartala, and that an ex parte decision was made on 14-2-1975 in Misc. Case No. 10 of 1968 subsequently numbered as Misc. Case No. 24 of 1974 and by that ex parte decision the learned Subordinate Judge made a specific finding that decree became inf ructuous and it was not executable and the decree-holder was entitled to get restoration of the decretal land. Further that it is also an admitted fact that the said finding of the learned Subordinate Judge made in Misc. Case No. 10 of 1968 is still in force as the same was neither varied nor altered by the appellate authority or by revisional authority.

4. Thus we find that in para 16 the learned Court only referred to the earlier judgments relating to the same dispute.

5. In para 18 the learned Court observes that from the records it appears that Shri Hem Chandra Sarkar was never recognised as tenant or raiyat under the Government though he was admittedly, in possession of the said land on the date of vesting.

6. In para 19, after quoting Section 144 of the C.P.C, the -Court observes that there is no dispute with regard to the facts that at the time of the decree Smt. Jyeti Bala Chakraborty had ceased to have any interest in the land and the decree had become inexecutable and that right had vested in the Government on 14-11-1961 who alone could execute the decree for possession and that the decree in question became inexecutable at the instance of Smt Jyoti Bala Chakraborty as the land has been vested upon the Government under the provision of Section 134 (Tripura Land Revenue and Land Reforms Act); but that did not mean that the decree in question had ceased to exist. The Court also observes that the decree of T. S. No. 43 of 1959 was confirmed by the Hon'ble Judicial Commissioner and it is still in existence and that the only dispute arises in this case in respect of the findings made by learned Subordinate Judge Shri T. L. Dutta in Misc. Case No. 10 of 1968 arid it appears from that order that the learned Subordinate Judge remained silent about the title of the judgment-debtor in respect of the land on the date of vesting but he only finds that due to operation of the T. L. R. and L. R. Act the land in suit has been vested upon the Government and hence decree has become inexecutable; but that finding did not mean that the decree of the trial Court had any way been reversed, varied or modified and that being the position, in the opinion of the Court, there was no change in the decree except that the State Government became the Decree-holder and that the decree was quite alive and could be executed by the State Government instead of Smt. Chakraborty who had originally Obtained the decree.

7. In para 21 of the judgment the learned Court observes that the decree-holder Smt. Jyoti Bala Chakraborty could not execute the decree because she had ceased to have any interest in the land; but by that it cannot be said that the present appellant Shri Sarkar is entitled to get return of possession of the land because it was a matter between Shri Sarkar on one hand and the State on the other hand; and if the State Govt. wanted to execute the decree it had got right to do so and the present appellant Shri Sarkar could not resist that execution as the decree was quite alive.

8. From the above observations of the learned Court it appears that the Court tried to make a historical survey of the development in the litigation relating, to the execution of the decree. If while making such survey certain

observations have been made which were not

historically correct, those observations will

not be effective simply because it was so

observed in that decision. A case is an authority

for what it decides and not for what can be

deduced from it. The ratio decidendi of a case

is the point which determines the decision

and not the premises whereupon the ratio

decidendi is based. The petitioner in the instant

case has hot questioned the decision which

determined that Shri H. Sarkar was not entitled

to restitution under Section 144, C.P.C. The

premises on which that decision-is based or

the deductions on which that decision is

founded will be interpreted to the extent and

for the purpose necessary to arrive at the

decision. These are not observations of any

personal nature or having no relation with or

relevancy to the matter in dispute and as such

it cannot be said that they are not relevant or

in discussing them in the historical sequence

the Court acted beyond its jurisdiction or with

illegality or material irregularity affecting its

decision in the case. If the observations of

facts made are not historically correct and are

not otherwise of binding authority they would

not be so simply because those happened to

be mentioned in the order. This being the

position their expunction at this stage is not

called for.

9. The revision petition is accordingly found to be without merit and it is rejected. Under the facts and circumstances of the case there will be no order as to costs.


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