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Dhusasan Nayak Vs. Dhadi Nayak and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. Nos. 699 of 1979 and 14 of 1980
Judge
Reported inAIR1983Ori127
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 and 115
AppellantDhusasan Nayak
RespondentDhadi Nayak and ors.
Appellant AdvocateJ. Pattanaik and ;S.K. Day, Advs.
Respondent AdvocateR. Mohapatra, ;A. Mohanty, ;A. Pasayat, ;Bidhayak Patnaik and ;N.C. Patnaik, Advs.
DispositionRevision allowed
Cases ReferredMst. Sara Bai Agarwalla v. Haradhan Mohapatra
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........executing court accepted the commissioner's report and reflected the prayer for deputing another commissioner. civil revision no. 699 of 1979 is filed against that order.2. the executing court independently examined the stand taken by the judgment-debtor that possession of about 2 decimals in excess had been delivered to the decree-holders and after receiving evidence from parties rejected that stand by order dated 28-7-79 by holding:--'thus it is now evident that the land was delivered as per the decree and there was no excess delivery.'civil revision no. 14 of 1980 has been filed against that order.3. when both these revisions came up for admission and hearing before a learned single judge, objection was raised by counsel for the opposite parties relying on a division bench decision.....
Judgment:

R.N. Misra, C.J.

1. The judgment-debtor in Execution Case No. 120 of 1975, levied for executing the decree in Title Suit No. 15 of 1961 in the Court of the Munsif, First Court, Cuttack, is the petitioner in both these applications under Section 115 of the Civil P. C. The final decree in the said suit allotted 4-2/63 decimals out of 11 decimals in plot No. 498 in Khata No. 60 in favour of the decree-holders. The remaining property out of the plot was to go to the judgment-debtor and some others. Execution was levied to take possession of the aforesaid portion of the plot. A Commissioner was appointed to deliver possession upon measurement. The Commissioner submitted a report to the effect that possession had been delivered. An objection was filed purporting to be under Section 47 of the Code which was registered as Misc. Case No. 34 of 1978 challenging the Commissioner's report and contending that delivery of possession of excess land had been effected. By order dated 28-6-79, the Executing Court accepted the Commissioner's report and reflected the prayer for deputing another Commissioner. Civil Revision No. 699 of 1979 is filed against that order.

2. The Executing Court independently examined the stand taken by the judgment-debtor that possession of about 2 decimals in excess had been delivered to the decree-holders and after receiving evidence from parties rejected that stand by order dated 28-7-79 by holding:--

'Thus it is now evident that the land was delivered as per the decree and there was no excess delivery.'

Civil Revision No. 14 of 1980 has been filed against that order.

3. When both these revisions came up for admission and hearing before a learned single Judge, objection was raised by counsel for the opposite parties relying on a Division Bench decision in the case of parshava Properties Ltd. v. A.K. Bose, AIR 1979 Pat 308 that appeals lay against the orders and the Civil Revisions Were not maintainable. The learned single Judge directed that the revisions be placed before a Division Bench for disposal. That is how these revisions have been placed before us.

4. Two aspects have to be examined for disposing of these two revisions :--

(1) Whether the impugned orders are available to be revised in applications under Section 115 of the Civil P. C. or appeals lay; and

(2) Whether the orders of the Executing Court on merit can be sustained

Undoubtedly, a Division Bench of the Patna High Court in AIR 1979 Pat 308 (supra) has taken the view that although the definition of 'decree' in Section 2(2) of the Civil P. C. has been amended in 1976 by omitting the determination of a question under Section 47, yet, if an order passed by a Court satisfies the essential characteristics of a decree as defined after the amendment, the order would still amount to a decree and an appeal would be maintainable. This view has not been accepted by a Full Bench of the Allahabad High Court in Pratap Narain Agarwal v. Ram Narain Agarwal, AIR 1980 All 42. The Rajasthan High Court in Mohan Das v. Kamla Devi, AIR 1978 Raj 127 and a Full Bench of the Kerala High Court in Mohammad Khan v. State Bank of Travancore, AIR 1978 Ker 201 have also taken the view that the effect of the amendment in 1976 was that an order on objections under Section 47, C. P. C. no more amounted to a decree. A later case of the Kerala High Court in Kuriakose v. P.K. Narayanan Naik, AIR 1981 Ker 18 has also taken the same view. The decisions of the High Court at Gauhati in Tapan Chandra Deb Barma v. Dulal Chandra Deb Barma, AIR 1980 Gau 3 and of the Andhra Pradesh High Court in M. Jenikamma v. Hanumantha Vajjula, Paradesi Sarma, AIR 1980 Andh Pra 209 have also taken the same view. The opinion of the Division Bench of the Patna High Court (supra) has been accepted by the Madhya Pradesh High Court in the case of Chuluram v. Bhagatram, AIR 1980 Madh Pra 16. This very question arose for consideration before one of us (The Chief Justice) in the case of Mst. Sara Bai Agarwalla v. Haradhan Mohapatra, (1981) 52 Cut LT 535 : (AIR 1982 Orissa 9). The matter was examined at length and the view of the Allahabad High Court has been accepted. The view indicated in the aforesaid reported decision has been followed in some unreported decisions including one delivered by one of us (Patnaik, J.). We are of the view, following the reasoning given in (1981) 52 Cut LT 535 : (AIR 1982 Orissa 9), that a revision and not an appeal is maintainable against an order of the Executing Court rejecting an objection under Section 47, C. P. C. Civil Revision No. 14 of 1980 is, therefore, maintainable.

5. Civil Revision No. 699 of 1979 was directed against the acceptance of the Commissioner's report and was not against any final order on the objection under Section 47 of the Civil P. C. Therefore, against that order an application under Section 115, Civil P. C. was maintainable.

6. The other aspect for consideration now is whether on the basis of the report of the Commissioner and his evidence it should be held that the delivery of possession was in accordance with the decree and no excess land has been delivered. The Commissioner who was examined as P. W. 1 has admitted in cross-examination by the judgment debtor :--

'I had not made any field book. I took fixed points. I have not mentioned in my report as to which was the fixed point. I ascertained the corner by mechanical methods, but I had not stated so in my report ... ... ...

... ... .. I had gone twice, but I submitted only one report.'

While he was further cross-examined, he stated that he had got a field book and could file the same. As a fact, however, he has not produced it. In view of what has been admitted by the Commissioner, it would be difficult to hold that possession was delivered in accordance with the decree. The property is valuable being located within the municipal limits of Cuttack. As the disputed property is residential in character the judgment-debtor would be put to irreparable loss if excess property is delivered to the decree-holders. It is the obligation of the Executing Court to ensure that the decree is appropriately executed and for any error of the Court or its offices neither party is prejudiced. It would be appropriate to hold that possession has not been properly delivered and delivery of possession should be re-made by actual measurement on the field. We order that the Executing Court would direct fresh delivery of possession by requiring the salaried Amin-Commissioner to deliver possession of the properly after measuring the same in the presence of both the parties.

7. Both the Civil Revisions are accordingly allowed. There will, however, be no order for costs.

The records be returned immediately.

Patnaik, J.

I agree.


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