IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.425 of 2008 Md. Naimuddin & Ors Versus Liyakat Mian & Ors ---------------------------------- 3 24-10-2011 Heard Mr. P.K. Jaipuriyar, the learned counsel appearing on behalf of the appellants in support of the appeal. This appeal has been filed against the judgment and decree dated 25-8-2008 passed by Additional District Judge, Fast Track Court-1, Katihar, in Title Appeal No. 7 of 1993 affirming the judgment and decree dated 20th January, 1993 passed by Munsif, Katihar, in Title Suit No. 14 of 1986. The defendant 1st set in the suit are the appellants before this Court against the judgment of affirmance. The suit has been filed praying mainly for two reliefs, namely, for declaring the earlier judgment and decree of Title Suit No. 68 of 1981 as illegal, inoperative and obtained by the defendants by fraud and further for declaring the execution proceeding pursuant to the judgment and decree of Title Suit No. 68 of 1981 as also illegal and without jurisdiction. Both the parties appeared in the suit, led their respective evidence and after hearing the rival submissions the trial court has come to the finding that the judgment and decree passed in Title Suit No. 68 of 1981 was valid and binding upon the parties and was not vitiated by fraud, as alleged by the plaintiffs. However, the trial court has further come to the finding that the proceeding of Execution Case No. 35 of 1982 pursuant to the judgment and decree aforesaid was not valid and legal, as the 2 judgment-debtor died long before and the proceeding of execution had been taken against a dead person.The suit was, thus, decreed in part only with regard to the second relief. The defendant 1st set filed the appeal against the part of the decree granting the second relief to the plaintiff and a cross-appeal was filed against the other part by the plaintiffs by which the first relief had been refused. The appellate court after reappraisal of the evidence of the parties in view of their rival submissions, has concurred with the findings of fact of the trial court holding that the execution proceeding has been conducted in fraudulent and illegal manner against Rupan Mian(judgment debtor), who was dead by then and dismissed the appeal. The cross-appeal was also dismissed by the appellate court holding the decree passed in Title Suit No. 68 of 1981 to be valid and legally enforceable. The learned counsel appearing on behalf of the appellants has vehemently submitted that the finding with regard to the death of Rupan Mian , as recorded by both the courts below, is against the evidence on record and is also based on misappreciation of the evidence. It has been urged that once the decree passed in Title Suit No. 68 of 1981 had been upheld and the said decree being an ex-parte decree, the execution proceeding for enforcing the said decree should not have been invalidated only for the reason that the judgment-debtor was not present. The further contention of the learned counsel appearing for the appellants is that the finding regarding the date of death of 3 judgment-debtor Rupan Mian is not sustainable in view of the oral evidence on the record including those of the witnesses of the plaintiffs. It has been lastly contended that from the evidence it is clear that the judgment-debtor of Title Suit No. 68 of 1981 had the knowledge of the execution proceeding also and thus the execution of a valid decree obtained in Title Suit No. 68 of 1981 for specific performance of contract should not have been invalidated at the instance of the judgment-debtor or heirs of the judgment-debtor. From the perusal of the judgments of both the courts below it appears that the entire evidence of both the parties have been meticulously considered by the courts below and thefindings are based upon the appreciation of evidence and submission of the parties. It is well-settled by now that the concurrent findings of fact are binding upon the second appellate court unless they are shown to be perverse, and the reappraisal of the evidence of the parties are normally not permissible except on well recognized grounds. Nothing could be placed before this Court to establish that the findings of facts concurrently arrived at by both the courts below are perverse. It is also difficult to accept the submission that an execution proceeding of an ex parte decree can also proceed in ex parte manner and there is no illegality in that. The procedure prescribed for execution of a decree does not draw a distinction between a contested decree and an ex parte decree. There is no legal infirmity in the findings and conclusions of the courts below. In view of the foregoing reasons, no substantial 4 question of law arises for consideration in this appeal, which is accordingly, dismissed. roy ( V. Nath, J.)