CRP 227/2001 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY Heard Mr. BC Das, learned senior counsel for the petitioner as well as Mr. MH Ra jborbhuiyan, learned counsel appearing for the respondents. The petitioner, who is the judgment debtor, by the present petition has challeng ed the order dated 24.5.2001 passed by the learned executing court in MC No. 64/ 1999 whereby and whereunder the petition filed by the petitioner under Section 4 7 read with Section 151 of the CPC for dismissal of the execution proceeding bei ng Title Execution Case No. 15/1997 on the ground that the decree cannot be exec uted without partition, has been rejected. It is evident from the materials made available on record that Title Suit No. 82 /1986 was filed by the present respondents against the present petitioner for de claration of right, title and interest and recovery of khas possession in respec t of the land measuring 2 bighas 13 kathas 12 chataks. The suit was partly decre ed by the learned trial court declaring the title of the plaintiff No. 1 in resp ect of the land measuring 17 kathas 12 chataks 10 gandas and in favour of the pl aintiff No. 2 in respect of land measuring 8 kathas 14 chataks and 5 gandas. The prayer for recovery of khas possession, however was rejected. The plaintiffs/respondents being aggrieved preferred First Appeal No. 60/1989 be fore this Court, which was disposed of vide judgment and decree dated 3.1.1994. The 1st appellate court while decreeing the suit of the plaintiffs declared the right, title and interest in respect of the land measuring 2 bighas 13 kathas 12 chataks and has also passed the decree for recovery of khas possession in respe ct of the suit land excluding the land measuring 5 kathas 8 chataks 15 gandas in respect of which the defendant No.1 was found to be tenant. The learned 1st app ellate court further directed that the decree be executed by the executing court by issuing commission and determining the area of 5 kathas 15 gandas where the defendant No. 1 is the tenant and to deliver the khas possession in respect of t he remaining land over which the right, title and interest have been decreed. The said decree was put in execution in Title Execution case No. 15/1997 wherein the application under Section 47 CPC has been filed by the judgment debtor cont ending that the decree is not executable without effecting a partition which is required to be done by the Collector under the provision of Section 54 read with Order 20 Rule 18 CPC. The defendants meanwhile filed the review petition, registered and numbered as R eview Petition No. 3/1994, raising the same question, as has been raised in the execution proceeding, seeking review of the judgment and decree dated 3.1.1994 p assed in the first appeal No. 60/1989. The said plea, however, has been rejected vide order dated 20.6.1995 by holding that in the suit in hand there is no ques tion of partition as the defendant No. 1 was found to be a tenant in respect of the land measuring 5 kathas 8 chataks 15 gandas. From the aforesaid position, it is therefore, evidently clear that the 1st appel late court’s judgment has protected the interest of the defendant as tenant in r espect of the land measuring 5 kathas 8 chataks 15 gandas and directed the learn ed executing court to issue commission for the purpose of demarcation of the sui t land and to handover the possession of the remaining land of 2 bighas 13 katha s 12 chataks in respect of which right, title and interest of plaintiff was decl ared. In view of the above, the learned executing Court has not committed any illegali ty, in passing the impugned order dated 24.5.2001, requiring interference in exe rcise of the jurisdiction under Section 115 of the CPC. The learned executing co urt shall proceed to execute the decree as passed in the aforesaid suit. The executing court shall issue commission for determination of the land measuri ng 5 kathas 8 chataks 15 gandas out of 2 bighas 13 kathas 12 chataks, over which the right title and interest has been declared and while protecting the possess ion of the defendant over the said land 5 katahs 8 chatas 15 gandas, the possess ion of the remaining land shall be handed over to the plaintiffs. The revision petition is, therefore, dismissed. No cost.