IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.211 of 2007 Md.Atiquar Rahman @ Atiquar Ra Versus Md.Khurshid Alam & Ors ----------- 11 20-10-2011 Heard the learned counsel appearing on behalf of the petitioner and the learned counsel appearing on behalf of the opposite parties. The delay in filing this revision application is condoned. It is not in dispute that the decree for eviction has been passed against the opposite parties and the said decree has been affirmed upto this Hon’ble Court. Thereafter,the decree- holder/petitioner filed an execution case for taking delivery of possession over the suit house. The opposite parties filed a petition under section 47 C.P.C. raising objection with regard to the executability of the decree for want of specification of the suit property over which the delivery of possession was to be effected. The executing court decided the objection in favour of the petitioner/judgment debtor and the matter came before this Court in C.R.No. 1634 of 1990 and by order dated 18-7-1991 in the said revision application a direction has been issued to the executing court below to ascertain the suit property with regard to the plaint, written statement and other materials available on the record of the title suit, and after ascertaining the suit property, direction was to be issued for delivery of possession in accordance with law. From the order dated 5-2-2001 passed by the executing court, it appears that in accordance with the direction of this Court the executing 2 court considered the plaint, written statement and other materials available on record and had come to the conclusion that the description of the suit house could not be ascertained and thereafter had declined to issue the writ of delivery of possession. The petitioner decree-holder challenged the aforesaid order dated 5-2-2001 by filing C.R.No. 29 of 2001 before this Court, but the said revision application was dismissed in default and thereafter the restoration application had also been withdrawn as per the submission of the learned counsel for the petitioner. It appears that thereafter the petitioner-decree holder filed another petition before the executing court praying for execution of the decree after ascertaining the details of the suit house. By the impugned order dated 18-10-2006 the executing court has come to the finding that in view of the orders dated 5-2-2001 and the order dated 18-3- 2002 the prayer of the petitioner-decree holder had already been rejected and the said orders had attained finality after dismissal of the civil revision application against them. Therefore, the executing court has come to the conclusion that the executing proceeding was not fit to be continued further. The learned counsel appearing on behalf of the petitioner has submitted that the suit was only for eviction from a house and both the parties went to trial fully aware of the description of the suit house. The petitioner had succeeded from all the courts and a decree for eviction had been passed against the opposite parties and now it will be not in the interest of justice to refuse execution of the decree on technical ground like description 3 of the suit house. It has been urged that in order to do substantial justice between the parties, the executing court should be directed to proceed further with the execution case and effect delivery of possession. Per contra, the learned counsel appearing on behalf of the opposite parties, has supported the impugned order and has submitted that after the orders dated 5-2-2001 and 18-3-2001, which had attained finality, there was no scope for a direction to the executing court to proceed further with the execution case. After hearing rival submissions of the parties, it is clear that the earlier order dated 5-2-2001 had been allowed to attain finality by the petitioner. It is not the case of the petitioner that he was not aware of the said order and in fact the petitioner preferred a revision application before this Court unsuccessfully. Even thereafter the petitioner did not resort to other legal remedies available to him. There is no doubt in the submission of the learned counsel for the petitioner that substantial justice should be made between the parties, but in view of the aforesaid facts, it is difficult to find any illegality in the impugned order. This revision application is, therefore, dismissed. However, this order shall not prejudice the petitioner from pursuing his remedies as permissible under law. roy ( V. Nath, J.)