CRP 53/2010 BEFORE THE HON’BLE MR JUSTICE AMITAVA ROY JUDGMENT AND ORDER (ORAL) The order dated 19.12.2009 passed by the learned Munsiff, Hojai at Sankardev Nag ar in Title Execution Case No. 7/2006, rejecting the applications of the petitio ner under section 47 of the Civil Procedure Code (hereafter for short referred t o as the Code) read with section 115 of the Code and as well under Order 21 Rule 29 of the Code constitutes the subject matter of the challenge herein. 02. I have heard Mr. GC Phukan, learned counsel for the petitioners and Mr. KK Mahanta, Senior Advocate assisted by Mrs. M Katakey, Advocate for the opposite party-respondent. 03. The respondent instituted Title Suit No. 49/1996 in Court of the Munsiff, Hojai at Sankardev Nagar, seeking decree for ejectment of late Makram Ali Mazumdar, the predecessor-in-interest of the present petitioners from a that ched house described in the schedule to the plaint as hereinbelow: - A Thatched house situated at Dabaka town near Davaka High School standing on he land of 35 lechas, being suit premises covered by Dag No. 307 of periodic Patta No. 191 under Dabaka Revenue town Kissamat in the Mouza Jamunamukh within Hojai Sub-division in the district of Nagaon, Assam which is bounded by the North: - School road, South-Mafizur Rahman, East-Rest of the land of plaintiff, West-Road to Dabaka P.S. (New P.S). 04. By an amendment to the Schedule, it was clarified that the suit premises was situated in Ward No. 6 of Dabaka town and covered by Holding No. 23 . The suit, which was contested by the petitioners, was, eventually, dismissed a fter full trial. On an appeal being preferred by the respondent, the judgment wa s reversed and the suit was decreed. The petitioners unsuccessfully challenged t he determination of the Appellate Court in a civil revision petition before this Court. The decree passed by the learned Lower Appellate Court, therefore, attai ned finality. It was, thereafter, that the respondent instituted Title Execution Case No. 7/2006 in the Court of the learned Civil Judge (JR. Divn), Hojai, Sank ardev Nagar. Meanwhile, the petitioners also instituted Title Suit No. 40/2007 s eeking a declaration of their right, title and interest in the suit property. Th ey also filed Title Suit No.49/2007 in the same Court praying for a declaration that the decree obtained by the respondent in TS No. 49/1996 was a nullity, havi ng been obtained by fraud. The said suits are presently pending. In the title execution case mentioned hereinabove, the aforementioned two applic ations were subsequently filed by the petitioners. In the one under section 47 o f the Code, they essentially sought to highlight that the identity of the proper ty under execution was in doubt and that if the decree is executed it would resu lt in their ouster from their own land and house not included in the suit proper ty of Title Suit No. 49/1996. Facts necessary to establish the said claim were n arrated in the said application. By the application under Order XXI Rule 29 of t he Code, a prayer was made to keep the execution proceeding in abeyance in view of the contentions recorded in the petition under section 47 of the Code. Writte n objection was filed by the respondents pleading in substance that as the suit property is well identified and demarcated in the plaint of Title Suit No. 49/19 96 and replicated in the decree passed, the applications were untenable in law a nd on facts and ought to be rejected. According to the respondents, the issues s ought to be raised in the applications of the petitioners were all attended to b y the learned courts below in the proceedings relating to TS No. 49/1996 and tha t it was impermissible to grant the reliefs prayed for. The learned trial Court, by the impugned order rejected the applications of the petitioners. In doing so it traced the history of the litigation between the parties, more particularly, with reference to TS No. 49/1996, ending in the affirmation of the decree passe d by this Court in the civil revision petition preferred by the petitioners. Acc ording to the learned trial Court, the facts narrated in the application under s ection 47 of the Code trying to establish a mistake in identity of the suit prop erty did not deserve to be taken note of in this backdrop. It also recorded that the decree involved did not suffer from nullity and, therefore, declined to gra nt the reliefs prayed for by the petitioners. 05. Mr. Phukan, has insistently urged that as the property which is the subject matter of the decree passed in TS No. 49/1996 is distinctly differen t from the one in possession of the petitioners, the endeavour of the respondent -judgment debtor being to oust them therefrom under the garb of the execution th ereof (decree), the learned executing Court ought to have intervened and granted the reliefs prayed for by the petitioners. He also referred to the pendency of the TS No.40/2007 and TS No. 49/2007 to contend that in fitness of things the ex ecution of the decree passed in TS No.49/1996 ought to have been stayed. 06. Mr. Mahanta, on the other hand, has urged that as the decree pas sed in TS No. 49/1996 has to be essentially in law limited to the terms thereof, the learned executing court was perfectly justified in passing the impugned ord er and thus, no interference therewith is called for. 07. Upon hearing the learned counsel for the parties and on a consid eration of the materials on record, this Court feels inclined to sustain the fin dings recorded in the order impugned. Admittedly, the TS No. 49/1996 instituted by the respondents against the predecessor-in-interest of the petitioners had be en adjudicated on merits and had ended with an affirmation of the decree by this Court in the civil revision petition filed by the present petitioners. The decr ee in TS No.49/1996, therefore, had attained finality before the Title Execution Case No. 7/2006 was instituted by the respondent. On a perusal of the Schedule A to the plaint in the aforementioned title suit, the description of the suit pr operty appears to have been clearly defined. There is no wrangle at the Bar that the property which is the subject matter of TS No.49/1996 does suffer from any lacuna or mistake in its description so as to render the identity thereof doubtf ul or uncertain. It has also not been disputed before this Court that the descri ption has been replicated in the decree. 08. In course of the arguments, Mr. Phukan, on instructions, has sub mitted that the petitioners are not in possession of the land and house describe d in the aforementioned schedule. In that view of the matter, it passes one’s co mprehension as to how, if the property for which the execution of the decree has been lodged is different from the one in occupation of the petitioners, they wo uld suffer any loss or prejudice if the impugned order is allowed to stand. Ther e is no indication in the order assailed granting liberty to respondent to trave l beyond the decree in the course of the execution thereof. 09. The findings recorded by the learned Court below in the facts an d circumstances of the case are backed by the weight of the materials on record and can neither be repudiated as illegal nor denounced as arbitrary or in defian ce of logic. In the above view of the matter, there is no merit in the instant petition and t he same is accordingly dismissed. No costs.