IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.413 of 2006 SMT.USHA DEVI Versus VIJAY KUMAR SHARMA ----------- 8 3/7/2008 Heard the parties. Petitioner is aggrieved by the order dated 21.11.2005 passed in Eviction Execution Case No. 6 of 2003/ 6 of 2004, whereby and whereunder, the execution case filed by the petitioner came to be dismissed on the ground that the suit property in the eviction suit and the property which has been purchased by the petitioner do not tally and/or is not identifiable. Mr Shashishekhar Dwiwedi, Learned Senior counsel while assailing the aforementioned order has submitted that the whole approach of the court below by comparing the boundary of the sale deed vis-à-vis the boundary given in the suit is wholly erroneous, in as much as, when the petitioner has purchased a bigger area including the house in question the boundary in the sale deed cannot tally with the boundary in the schedule of the decree sought to be executed by the purchaser. He submits that there cannot be any dispute that the eviction suit was filed for part of holding no. 39 and the petitioner by the sale deed has purchased entire holding no.39 and therefore the court below 2 had no difficulty in allowing the execution as prayed for by the petitioner who is purchaser from the decree holder. On the other hand, counsel for the opposite party has submitted that the approach of the court below cannot be faulted because the decree holder was not made a party in the execution case. He further submits that even the Municipal Survey Khatian with regard to details of holding no. 39 was not filed by the petitioner which could have been enabled the court below to come to a conclusive findings with regard to the case of the petitioner that the holding no. 39 as described in the decree sought to be executed in the execution case by her was covered by the sale deed in her favour executed by the decree holder. Having considered the aforementioned rival contentions of both the parties, this Court is of the opinion that the court below has totally mis- directed itself by comparing only boundaries in the decree with the sale deed. The case of the petitioner was that she had purchased a bigger property from the decree holder which also included the house in question being holding no.39, as such the boundaries would never tally, in as much as, eviction suit was filed only for executing a decree in favour of decree holder which was only for a part of holding no. 39. In that view of the matter, the court below was required to actually examine as to whether holding no. 39 as described in the sale 3 deed and in the schedule of the eviction suit were the same property. For doing so the court below had to look into the Municipal Survey Khatian containing description of holding no.39 and if necessary also appoint a Pleader Commissioner to ascertain correctness and identity of the suit property of the eviction suit vis-à-vis the property which was purchased by the petitioner by the sale deed from the decree holder. The court below even in absence of the decree holder being made party in the execution case by the petitioner could have exercised its power to ascertain this crucial fact by taking any other recourse in order to ensure that the decree was executed. The approach of the court below in comparing only boundary in the decree vis-à-vis the sale deed patently seems to be not only mechanical but also erroneous and in fact makes the impugned order in question vitiated by material irregularity. Accordingly, the impugned order is set aside. The parties have consented before this Court that the petitioner would first make the decree holder a party to the execution case and the petitioner would also produce the Municipal Survey Khatian of holding no. 39. If upon hearing of the decree holder as well as comparing the entries in Municipal Survey Khatian in respect of holding no. 39, the executing court is satisfied that the decree sought to be executed is in respect of that very house which was subject matter of eviction suit, the court below will pass 4 an appropriate order directing delivery of possession to the petitioner. However, if the court below is still in doubt with regard to identification of the property, he shall have option to appoint a Pleader Commissioner at the cost of the petitioner. The entire exercise including delivery of possession, if allowed by the court below, must be completed within a period of six months from the date of receipt/production of a copy of this order. With the aforesaid observations/directions this application is allowed. ( Mihir Kumar Jha, J.) Abhay Kumar