ORISSA HIGH COURT : CUTTACK CRP No. 23 OF 2010 From an order dated 10.5.2010 passed by Smt. M. Panda, learned Additional Civil Judge (Senior Division), Puri in Misc. Case No.6 of 2001 arising out of Execution Case No.6//2000. ------------- Surendranath Sahoo …… Petitioner -Versus- Mahendra Samantray & others …… Opp. Parties. For Petitioner : M/s. S.K. Dash, A.K. Otta, A.Dhirsamanta & B.P. Dhal. For Opp. Parties: M/s. P.K. Rath, P.K. Satapathy, A.K. Rout & S.K.Pattnaik. ----------------------- Decided on 13 .08. 2010. -------------------------- P R E S E N T : THE HONOURABLE SHRI JUSTICE M. M. DAS ------------------------------------------------------------------------------------------ M.M. DAS, J. This revision petition has been filed against an order passed by the executing court on an application under Section 47 of the C.P.C. filed by the petitioner in Execution Case No. 6 of 2000. The said application under Section 47 C.P.C. was registered as Misc. Case No. 6 of 2001. 2. The facts leading to the execution petition are that a suit was filed by the decree holders-plaintiffs numbered as T.S. No. 125/64 of 83/80 for declaration of their right to repurchase the shares of defendant nos. 2 to 6 and for permanent injunction against the defendant no.1, who was a stranger purchaser from the co-sharers. The learned trial court decreed the suit holding that the stranger purchaser-defendant has failed to establish the fact of partition of the suit property amongst the co-sharers and the sale of the portions of the property is void and under such circumstances, the documents exhibited on behalf of defendant no.1 cannot be taken into account to arrive at a conclusion that the defendant no.1 has acquired valid title to the suit property. He further held that after the sale becomes void, delivery of possession on account of the sale is illegal and found that the suit property is undivided joint family property of the plaintiff and defendant nos. 2 to 6. The order in the judgment was that the suit is decreed on contest against the defendant no.1 with cost and ex parte against other defendants without cost and it is declared that the plaintiffs have option to purchase the shares of defendant nos. 2 to 6 at the prevailing market price during the time of institution of the suit and the defendant no.1 is permanently restrained from interfering in the plaintiff’s possession over the suit property and from destroying, damaging or making any waste of the same. The petitioner preferred an appeal against the said judgment and decree, which was registered as Title Appeal No. 34/1 of 1985/84 and was disposed of by the learned 2 2nd Additional District Judge, Puri. In the first appeal, the appellate court held that the findings of the learned trial court that the plaintiffs cannot exercise the right of repurchase under Section 4 of the Partition Act, inasmuch as the suit is not one for partition and its conclusion giving a declaration that the plaintiffs have option to purchase the shares of defendant nos. 2 to 6 at the prevailing market price is confusing and has to be set at rest. The first appellate court, therefore, held that the appellant being a stranger purchaser is liable to be evicted from the suit house if already in possession or permanently restrained from getting into possession on the footing that the dwelling house in dispute belongs to an undivided family the constituent members of which are the plaintiffs and defendants 2 to 6. With regard to the question as to whether the plaintiffs can exercise option to repurchase the shares since alienated to the appellant, according to the learned appellate court, will arise for consideration only when the question of partition is agitated either at the instance of the appellant or otherwise. Therefore, the learned appellate court concluded that the plaintiffs are entitled to a permanent injunction or a decree for eviction, as the case may be, against the appellant. He modified the decree setting aside the declaration that the plaintiffs have the option to purchase the shares of defendants 2 to 6 and 3 directing that the appellant (defendant no.1) if already in possession, shall vacate the building within one month hence, failing which the plaintiffs shall be at liberty to evict him through court. If the appellant is not in possession, he shall be permanently restrained from entering into the disputed house. 3. The petitioner thereafter challenged the said judgment and decree of both the courts below in Second Appeal no. 13 of 1987 before this Court. During pendency of the said Second Appeal, being S.A. No. 13 of 1987, an interim order was passed on 10.08.1989 directing that the possession of the appellant (petitioner herein) shall not be disturbed during the pendency of the second appeal subject to the condition that he shall furnish security to the tune of Rs. 3,000/- to the satisfaction of the Registrar, (Judicial) of this Court. This Court by judgment dated 24.04.1998 disposed of the second appeal holding that admittedly the defendant no.1 (petitioner) is the stranger purchaser and there is concurrent findings of both the courts below that the defendant no.1 failed to establish that there was partition of suit property by metes and bound amongst the co-shares and that it is a settled position of law that a stranger purchaser cannot have joint possession of a dwelling house belonging to a joint family. In the above view of the matter, this Court found that there was no substantial 4 question of law involved in the appeal. Accordingly the second appeal was dismissed without cost. The petitioner, thereafter, approached the apex Court in the Special Leave Petition, being SLP (Civil) No. 19862 of 1998. Initially the apex Court issued notice on 07.12.1998 and thereafter on 20.09.1999 made the following observations:- “The conclusion of the High Court that the deceased respondent no.9 need not be represented is erroneous. The present petitioner is a stranger – purchaser in respect of a share in the joint family dwelling house. Limited notice was issued by this Court to find out whether respondents 1 to 3 would be agreeable to repurchase the said share which the petitioner had purchased from some other co-sharer. Mr. Upadhyay, learned counsel appearing for the contesting respondents states that he is willing to repurchase the share in question. In the aforesaid premises, we think it appropriate to get the records of this proceeding duly constituted and allow the petitioner to bring the legal representatives of respondent no. 9 on record whereafter the matter can be disposed of by appropriate directions. The application filed by the petitioner to bring legal representatives of respondent no. 9 on record is accordingly allowed. Notice be issued to the legal representatives of respondent no. 9 so brought on record. Dasti service in addition is permitted. Office report dated 15th September, 1999 indicates that the legal representatives of respondent no.4 are already on record as respondent nos. 1, 3, 8 and 11. No order is required to be passed in this respect. Put up this matter after four weeks.” 4. When the matter came before the apex Court on 10.12.1999 recording the submission of the learned counsel for 5 the respondents in the said Special Leave Petition, the following orders was passed by the Supreme Court. “Delay condoned. Mr. S.B. Upadhyay appearing for the respondents on the basis of instruction received by him states that the respondents 1,2 and 3 have already purchased the suit properties by virtue of a registered sale deed in 1998 from the petitioner. In that view of the matter, there is no necessity for perusing this matter. The SLP is disposed of accordingly”. 5. Mr. S.K. Dash, learned counsel for the petitioner submits that the observations of the Supreme Court in its order dated 10.12.1999 amounts to varying the decree passed by the learned first appellate court and the submissions made by the learned counsel for the respondents on 10.12.1999 was factually incorrect as the respondents 1, 2 and 3 that is the decree holders did not purchase the land from the present petitioner but purchased the same from the defendants 2 to 6, which is subsequent to the sale in favour of the petitioner. 6. In my considered view when the Hon’ble Supreme Court, even though made certain observations during issuance of notice in the Special Leave Petition, disposed of the Special Leave Petition by taking note of the submission made by the learned counsel for the respondent-plaintiff (which is said to be incorrect) and itself disposed of the SLP without interfering with the judgment passed by the courts below, the contention of 6 Mr. Dash that the judgment and decree passed by the courts below have been varied by the said order, cannot be accepted. There may be some confusion with regard to the submissions made on behalf of the learned counsel for the plaintiffs before the Supreme Court, but as a matter of fact, since it is seen that the judgment and decree passed by the first appellate court has not been interfered with, the decree pursuant to the said judgment becomes an executable decree and the decree holders are entitled under law to execute the same. 7. As has been narrated above, in interpreting the judgment and decree passed by the learned first appellate court, it is apparent that the said appellate court cleared the confusion in the judgment of the learned trial court, wherein the learned trial court expressed its view that the plaintiffs cannot exercise the right of repurchase under section 4 of the Partition Act inasmuch as the suit is not one for partition, but gave a declaration that the plaintiffs have the option to purchase the share of defendant nos. 2 to 6 at the prevailing market price. The finding of the learned trial court that the plaintiffs cannot exercise the right of repurchase under section 4 of the Partition Act, unless the suit is filed for partition by the stranger purchaser, is correct in law. In that view of the matter, the decree as modified by the first appellate 7 court directing that the plaintiffs – decree holders can recover possession from the petitioner – defendant no.1, if the petitioner has already entered into possession of the dwelling house in dispute or else the petitioner – defendant no.1 is permanently restrained from coming into possession of the dwelling house in dispute as it belongs to an undivided family of the defendants with a rider that the question whether the plaintiffs can exercise the option of repurchase of the share already alienated to the petitioner – defendant no. 1 can be exercised and can be taken into consideration only when the petitioner – defendant no.1 comes up with a suit for partition, is an executable decree. 8. Section 47 of the CPC deals with question to be determined by the Court executing the decree, relating to the execution, discharge or satisfaction of the decree and prescribes that such question shall be determined by the court executing the decree and not by a separate suit. 9. It is well settled in law that an executing court cannot go behind the decree. No doubt the said court can interpret a decree with regard to its executability. In the instant case, the decree, which is under execution and was passed by the first appellate court which was confirmed by this Court in the second appeal and not interfered by the Hon’ble Supreme Court, in no uncertain terms directs that in the event the 8 petitioner (defendant no.1) is in possession over the disputed property, he shall be evicted therefrom and in the event he is not in possession over the same, he shall be permanently restrained from coming upon the said land and entering into the said land. 10. In view of the above, the application under Section 47 CPC which has been rejected by the executing court was not entertainable and I do not find that the impugned order has been passed either without jurisdiction or in excess of jurisdiction or with material irregularity. The Civil Revision is, therefore, dismissed being devoid of merit. ……………………… M.M. Das, J. Orissa High Court, Cuttack. August 13th, 2010/Biswal. 9