CIVIL REVISION No.516 OF 2008 ------------- Against order dated 13.11.2007 passed by Subordinate Judge-I in Execution Case No. 4 of 2001. ------------ 1. Baij Nath Mahto 2. Ramashis Mahto Both sons of late Raghubir Mahto, residents of village Dufaul, P.S. Shahpur, P.O. Gaudand, Anchal Behia, District Bhojpur ….Defendants-Judgment Debtors-Petitioners. Versus 1. Jamuna Mahto, son of late Ram Dahin Mahto 2. Hira Lal Singh 3. Birendra Singh Both sons of Jamuna Mahto 4. Mostt. Brij Kumari Devi (widow) wife of late Nand Kishore Singh All residents of village Dubaul, P.S. Gaudand, Shahpur, P.O. Gaudand, Anchal Behia, District Bhojpur …Plaintiffs-Decree Holder-Opposite Party 1st set. 5. Sushil @ Sushil Kumar Singh 6. Upendra Kumar Singh 7. Baban Singh All sons of Hira Lal Singh 8. Saroj Kumar Singh 9. Pramod Kumar Singh Both sons of late Nand Kishore Singh,all residents of village Dubaul, P.S. Shahpur, P.O. Gaudand, District Bhojpur …Plaintiff-Degree Holder-Opposite Party 2rd set. 10. Lachmina Devi, d/o late Raghubir Mahto, resident of village Dumraon, Charmoria, Mohalla Dumraon, P.O.+P.S. Dumraon, District Buxar. …Plaintiff-Decree Holder-Opposite Party 3rd set. 11. Bharat Singh 12. Kashi Nath Singh Both sons of Baij Nath Siungh 13. Santosh Singh 14. Jitendra Singh Both sons of Baij Nath Singh 15. Rahul Kumar, son of Bharat Singh …Plaintiffs-Decree Holder-Opposite Party 4th set. ------ For the Petitioners : M/s V. Nath and Ashok Kumar, Advocates. For the Opp. Parties : M/s A. B. Ojha and Bharat Bhushan, Advocates. -------- 2 P R E S E N T THE HON'BLE MR. JUSTICE S.NAYER HUSSAIN ------ S. N. Hussain, J. I.A. No. 1930/2008 has been filed for condoling the delay in filing of this civil revision. Considering the averments made by learned counsel for the petitioners and the statements made in this interlocutory application, it appears that genuine reasons have been shown, which prevented the petitioners from filing this civil revision earlier. Accordingly, I.A. No. 1930/2008 is allowed and the delay in filing of this civil revision is condoned. 2. Heard learned counsel for the petitioners and learned counsel for the opposite parties. 3. This civil revision has been filed by the defendants- judgment-debtors-petitioners challenging order dated 13.11.2007, by which learned Subordinate Judge-II, Arrah, dismissed the petition of the petitioners dated 04.10.2007 for recall of the ex parte orders dated 30.07.2007 and 08.08.2007 in Execution Case No. 04 of 2001. 4. The aforesaid execution case had arisen out of Title Suit No. 85 of 1991, which was filed by the plaintiffs-opposite parties first set for partition of their moiety share in the suit land. The defendants-petitioners contested the claim of the plaintiffs in the suit. In the said suit, the defendants raised an objection that the suit had abated under the provision of section 4C of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 and by order dated 14.02.1996 the learned court below ordered that the entire suit had abated. 3 5. However, subsequently some materials were brought on record, on the basis of which the learned trial court, vide order dated 19.03.1996, held that although there were thirty plots involved in the suit, but out of them 14 plots were not affected by the consolidation proceeding and hence the suit shall continue with respect to the aforesaid 14 plots. Thereafter, on 06.07.1996 by order of the court one more plot was added and altogether the suit continued with respect to 15 plots, whereas, it abated against the remaining 15 plots. 6. However, after evidence were led by the parties and arguments were made on their behalf, the learned trial court decreed the suit on 26.04.1997 and a preliminary decree was prepared. The said preliminary decree was challenged by the petitioners in Title Appeal No.43 of 1997, which was dismissed on 30.11.1998. The said judgment and decree was challenged by the petitioners in Second Appeal No. 92 of 1999, which was also dismissed by this Court on 15.02.2002. 7. It transpires that in the meantime proceeding for preparation of final decree was started and takhtabandi was made with respect to all the 30 plots, which were initially the subject matter of the suit and, accordingly, final decree was prepared on 10.08.2001 with respect to the said 30 plots. However, the said final decree was not challenged by any one before any court of law. The plaintiffs-decree-holders filed Execution Case No. 04 of 2001 for execution of the aforesaid final decree and for delivery of possession in their favour. 8. In the said execution case, Misc. Case No. 04 of 2004 was filed by the petitioners, who were opposite parties in the execution case under the provision of section 47 of the Code of Civil Procedure ( hereinafter 4 referred to as `the Code’ for the sake of brevity ) stating that the final decree was not executable as it was prepared with respect to 30 plots although preliminary decree was with respect to only 15 plots and the suit with respect to the remaining 15 plots had already been abated vide order dated 14.02.1996, 19.03.1996 and 06.07.1996.Another objection was raised therein that the share of Reshma Devi (defendant no.1) was not determined in the preliminary decree but the Pleader Commissioner determined the same during the proceeding of preparation of final decree. 9. It transpires that during the pendency of the execution case, the petitioners filed the said miscellaneous case and also filed a supplementary affidavit stating that the execution case can continue only with respect to 15 plots, regarding which the suit had not abated and had continued except those plots with reference to which the suit had abated. Finally the executing court allowed Misc. Case No. 04 of 2004 vide its order dated 26.06.2007, which has not been challenged by any one and has attained finality. 10. On 16.07.2007, the plaintiffs-decree-holder filed a petition for delivery of possession of his share in the plots regarding which the suit had not abated and without notice to the judgments-debtors the said petition was allowed by the executing court on 30.07.2007 and subsequently the executing court on 08.08.2007 ordered for delivery of possession in favour of the plaintiffs with the help of Police force. 11. In the said circumstances, the petitioners filed a petition dated 04.10.2007 in the executing court for recall of orders dated 30.07.2007 and 08.08.2007 stating that the proceeding cannot continue unless the final decree itself was corrected confining it to the 15 plots regarding which the suit 5 had not abated. The said petition was rejected by the executing court on 13.11.2007 by the executing court, which directed the office clerk to prepare final decree with respect to only those plots regarding which the suit had not abated in view of order dated 19.03.1996 and 06.07.1996 passed in the title suit as well as in view of order dated 26.06.2007 passed in Misc. Case No. 4 of 2004. 12. After hearing learned counsel for the parties and after perusing the materials on record, it is quite apparent that it is not in dispute that initially title suit was with respect to 30 plots but after abatement of the suit with regard to the remaining plots the suit continued only with respect to 15 plots and was, accordingly, decreed and preliminary decree was prepared deciding the shares of the parties. In the said circumstances, it is an admitted fact that there is no defect in the preliminary decree, which has been affirmed up to this court. 13. It is also admitted fact that during preparation of the final decree, takhtabandi was prepared by the Pleader Commissioner with regard to all the 30 plots, which were initially included in the suit, although subsequently the suit abated with respect to 15 of those plots and had continued with respect to only remaining 15 plots with respect to which preliminary decree was prepared. No objection having been raised to the takhtabandi report, the final decree dated 10.08.2001 was prepared with regard to all the 30 plots. Although the said final decree has not been challenged by any one, the same cannot be held to be legal, operative and binding because it was clearly and admittedly against the orders in the suit and the preliminary decree. 6 14. Furthermore, the plaintiffs-opposite parties have filed Execution Case No. 04 of 2001 for delivery of possession in accordance with the final decree and hence they sought delivery of possession with respect to their share in all the 30 plots. But subsequently Misc. Case No.04 of 2004 was filed by the petitioners under section 47 of the Code initially for disposal of the entire execution case on the aforesaid basis. However, thereafter, the petitioners modified their prayer by filing supplementary affidavit submitting that the execution case can continue against 15 plots with respect to which the suit had not abated but the execution case cannot continue with respect to remaining 15 plots with respect to which the suit had already abated. The said prayer of the petitioners was rightly allowed by the executing court vide order dated 26.06.2007, which was not challenged by any one and attained finality and in that view of the matter it was legal, valid and binding. 15. However, on the basis of the said order, the plaintiffs- opposite parties themselves filed an application for delivery of possession on the plots regarding which the suit had not abated. The said application was allowed by the executing court on 30.07.2007, whereafter the executing court ordered for delivery of possession on 08.08.2007. It transpires that in that view of the matter the defendants-petitioners filed a petition on 04.10.2007 for recall of the aforesaid orders dated 30.07.2007 and 08.08.2007 as the execution proceeding cannot continue in view of a defective final decree. However, the said petition of the defendants-petitioners has been rejected by the learned court below vide its order dated 13.11.2007, but the learned executing court having realized the defect in the final decree directed its office clerk to prepare a fresh final decree only with regard to those lands regarding which the suit had not abated. 7 16. Learned counsel for the opposite parties submits that on 08.08.2007 the executing court appointed Pleader commissioner for delivery of possession and on 30.12.2007 delivery of possession was effected in presence of the parties without any obstruction on the plots mentioned in the report, whereas, delivery of possession could not be effected in a portion of plot no. 107, which was a Kothari only and furthermore with regard to plots no. 180 and 181, delivery of possession could not be effected due to obstruction. Learned counsel for the petitioners vehemently opposes this contention of learned counsel for the opposite parties and submits that there had been no delivery of possession and the entire averment is false. It is quite strange that on the one hand the executing court is realizing that final decree was defective and is directing its office clerk to prepare a fresh final decree but on the other hand, it is proceeding with the execution case as per the previous defective final decree and passing such frivolous orders, which are completely violative of specific provisions of law and hence neither any heed can be paid to such frivolous submissions raised on behalf of the opposite parties, nor any reliance can be placed on orders dated 08.08.2007 and 30.12.2007 of the executing court. 17. From the averments of learned counsel for the parties and materials on record, it is quite apparent that there is no dispute that the final decree prepared was not proper and it was also with respect to 15 plots regarding which the suit had already abated. It is also relevant to mention here that the takhtabandi of 30 plots altogether would be completely different from the takhtabandi of 15 plots as it is possible that plots regarding which suit had abated are given to the share of one of the co-sharers and plots regarding which there was no order of abatement are given to the shares of other co- sharers causing huge discrepancy and loss to one party and undue gain to the 8 other. Hence, the execution case cannot continue for execution of such a defective final decree. In the said circumstances, the execution proceeding can legally continue only after the said final decree is corrected and is confined to only those 15 plots, regarding which the suit had not abated. So, the entire proceeding of the execution case after order passed by the executing court dated 26.06.2007 in Misc. Case No. 04 of 2004 cannot be held to be legal and proper. 18. It is quite apparent from the records of the case that the trial court, which had passed the preliminary decree and the final decree was the same, which was hearing the execution case. Thus it has full authority to make necessary corrections in the final decree if any such obvious and glaring error is brought to its notice and hence the learned court below was correct in directing that a fresh and proper final decree with respect to the plots regarding which the suit had not abated, be prepared, but it committed a mistake by directing the office clerk to prepare the said final decree. The office clerk has no jurisdiction at all to prepare takhtabandi for the final decree as it can only be done after the Court appoints a new Pleader Commissioner for preparation of a fresh takhtabandi following the due procedure of law modifying the earlier takhtabandi and limiting it to only 15 plots with respect to which the suit had not abated, whereafter the lower court may accept the fresh takhtabandi and direct the preparation of a corrected final decree accordingly. Only thereafter, the execution case can proceed on the basis of the modified final decree in accordance with law. 19. In the aforesaid facts and circumstances, it is quite apparent that the learned court below has committed error of jurisdiction by not only directing the Office Clerk to prepare final decree but also to proceed with the 9 execution case on the basis of a defective final decree, which was clearly not executable unless modified as mentioned above. 20. In the aforesaid facts and circumstances, this civil revision is allowed with the aforesaid observation. Patna High Court ( S. N. Hussain, J. ) The 10th of July, 2009 MPS/ N.A.F.R.