IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.135 of 2009 1. Dinanath Singh 2. Kedar Singh @ Kedar Nath Singh 3. Baban Singh 4. Ram Nath Singh 5. Raj Nath Singh 6. Kamal Kant Singh All sons of late Munan Singh, resident of village Jagdishpur, P.S., Buxar(M), District Buxar. ……….Defendants-Judgment debtors-Petitioners. Versus 1. Ram Sakal Singh 2. Ram Parvesh Singh 3. Sheo Balak Singh 4. Dhrub Singh 5. Hanslal Singh 6. Tej Narain Singh All sons of late Sheo Dahin Singh, resident of village Jagdishpur, P.S. Buxar(M), District Buxar. ….Plaintiffs-Decree holders-Opposite parties 1st set. 7. Sheo Kumari Kueri W/o Kanhaya Kushwaha, R/o village Bhochakiya, P.S. Itarhi, District Buxar. …Defendant-Decree holder-Opposite party 2nd set. For the petitioners : M/s Manojeshwar Pd. Sinha and Ratan Kumar Sinha, Advocates. For opposite party nos.1 to 6 : M/s Binod Kumar Singh, Raj Narayan Mishra, Binay Kumar and Anil Kumar Roy, Advocates. ----------- 09/ 05.11.2009 Heard learned counsel for the defendants-judgment debtors-petitioners and learned counsel for plaintiffs-decree holders-opposite parties 1st set. 2. This civil revision has been filed by the defendants- judgment debtors-petitioners challenging order dated 20.12.2008 passed in Execution Case No.04 of 1990 by which learned Civil Judge-I (Senior Division), Buxar rejected their application for 2 appointment of survey knowing Commissioner for ascertaining as to whether the door in question marked as ‘Ka’ in the map attached to the plaint was part of the disputed land, namely plot no.1120 and directed the Nazir to remove the bricks of the door kept on the said land. 3. The instant matter arises out of Title Suit No.09 of 1986, which was filed by the original plaintiff for declaration that the properties in Schedule II of the plaint (Plot No.1120) belonged to the plaintiff, whereas defendant had no concern with it and the action of defendant by closing the door marked as ‘Ka’ in the rough sketch map (Schedule-II) was completely illegal and a decree for its removal be passed. Another relief was sought that plaintiff’s possession over the suit land be confirmed and in case of dispossession, possession be given to the plaintiff, and for other ancillary reliefs including injunction. 4. In the said suit in spite of notices the original defendant, namely father of the defendants did not appear and the suit was decree ex-parte on 13/16.02.1990 holding that the plaintiff had been able to prove his case as well as his title and possession over the land in question and that he is entitled to an order of injunction regarding any interference by the defendants on that land. It transpires that against the said judgment and decree of learned Subordinate Judge-I, Buxar, defendants- judgment debtors filed Miscellaneous Case No.16 of 1990 under Order IX Rule 13 of the Code of Civil Procedure, which was 3 dismissed for default on 27.07.1990, whereafter all the applications filed in that regard by the defendants were dismissed and the said judgment and decree of the trial court attained finality. 5. It further transpires that the plaintiff-decree holder filed Execution Case No.04 of 1990 for execution of the aforesaid decree of the trial court. During the pendency of the aforesaid execution case the plaintiff-decree holder filed an application dated 21.05.2005 for directing the Nazir to remove the bricks kept by the defendants in front of the door mentioned as ‘Ka’ in the relief portion and map (Schedule-II) of the plaint and to give delivery of possession of that door. 6. Although the defendants-judgment debtors- petitioners filed objections dated 02.07.2005 and 17.09.2007 (Annexure 7 and 7/A) and also filed an application dated 01.12.2007 (Annexure 8) for deciding some issues before deciding the application of the plaintiff-decree holder, but the learned court below vide its order dated 20.12.2008 allowed the application of the plaintiff-decree holder dated 21.05.2005(Annexure-6), which is under challenge in the instant civil revision. 7. Learned counsel for the petitioners vehemently opposes the said order of the learned court below and submits that they had challenged the executability of the said decree of the trial court vide Misc. Case No.04 of 2001 and the said miscellaneous case was admitted by the learned executing court on 20.02.2001 4 against which the plaintiffs-decree holders filed C.R. No.655 of 2001 which was allowed by this court vide order dated 11.07.2002. 8. The said order of this court was challenged by the defendants-judgment debtors in SLP(C) No.23705 of 2002 (Civil Appeal No.6659 of 2003) and the Hon’ble Apex Court vide order dated 25.08.2003 (Annexure-2) allowed the appeal, set aside the impugned order and remitted the matter to the High Court for fresh consideration in the light of the observations made therein and for considering the contentions raised in a proper perspective and also for deciding how the grounds taken for challenging the execution of the decree were beyond the purview of section 47 of the Code of Civil Procedure, 1908. 9. It transpires that thereafter a Bench of this court re- heard C.R. No.655 of 2001 and disposed it of vide order dated 13.05.2004(Annexure-3) holding that by the impugned order only miscellaneous case had been registered and the question whether the decree is executable or not has to be decided by the executing court after hearing the parties, hence there is no occasion for interference with the impugned order at this stage. Thus direction was given to the learned court below to decide the question as to whether the decree is executable within two months from the date of receipt/production of a copy of the said order. 10. It transpires that thereafter Miscellaneous Case No.04 of 2001 was finally heard by the learned Subordinate 5 Judge-I, Buxar, who disposed it of vide order dated 17.08.2004 (Annexure-4) holding that relief no.2 of the decree and paragraph 4 of the execution petition mentioned in column no.10 of the same and endorsement on the back of the execution petition relating to the prayer for recovery of possession was not executable at all. It was also found that since the other part of the decree and the relief mentioned in paragraph-1, 2 and 3 of the execution petition mentioned in column no.10 being the same, save and except a prayer for recovery of possession, the decree was executable. Hence the plaintiffs-decree holders were directed to take proper steps in that regard. 11. The said order had been challenged by the plaintiffs-decree holders in C.R. No.1713 of 2004 and on 03.03.2005 a prayer was made by learned counsel for the petitioners for permission to withdraw the said civil revision in view of the decree passed in the case to which other side namely the defendants-judgment debtors had no objection and accordingly, the civil revision was dismissed as withdrawn on 03.03.2005 (Annexure-5). 12. Learned counsel for the petitioners has led much stress on the penultimate paragraph of order dated 17.08.2004 passed in Miscellaneous Case No.04 of 2001 in which it had been held that relief no.2 of the decree and paragraph-4 of the execution petition mentioned in column no.10 of the same and endorsement on the back of the execution petition relating to the prayer for 6 recovery of possession was not executable at all and other part of the decree and relief mentioned in paragraph-1, 2 and 3 of column no.10 of the execution petition, save and except a prayer for recovery of possession was executable. Hence he prayed that since the decree for recovery of possession was not executable, there was no occasion for the learned court below to allow the application dated 21.05.2005 of the plaintiffs-decree holders with respect thereto. 13. It may be noted that the said order was challenged by the plaintiffs-decree holders in C.R. No.1713 of 2004 in which the plaintiff prayed for permission to withdraw the revision petition in view of the decree passed in the case. This prayer of the plaintiffs-decree holders was not objected to by the defendants- judgment debtors who were opposite parties in the said civil revision and accordingly the prayer of the plaintiffs-decree holders who were petitioners in the civil revision was allowed. 14. So far judgment and decree dated 13/16.02.1990 passed in the case, namely Title Suit No.09 of 1986 is concerned, it was specifically held that the plaintiff had been able to prove his case, title and possession over the land in question and he was found to be entitled to an order of injunction against any interference by the defendants on that land and hence the suit was decreed in its totality, meaning thereby that all the reliefs claimed by the plaintiff were allowed. 15. So far the reliefs claimed by the plaintiff-decree 7 holder in the plaint of the said suit bearing T.S. No.09 of 1986 is concerned, it is as follows:- (i) Let it be declared that the properties of Schedule-I of the plaint belongs to plaintiff and defendants have no concern with it and action of the defendants with regard to closing of door marked by word ‘ka’ in rough sketch map (Schedule-II) is completely illegal and a decree for its removal be passed. (ii) Plaintiff’s possession over land in dispute be confirmed and in case of dispossession possession be given to the plaintiffs. (iii) By permanent injunction the defendants be restrained from interfering in the Utilization of Schedule-I lands. (iv) Cost of the suit. (v) Any other reliefs. 16. In the said circumstances, it is quite apparent that the learned trial court had declared that the action of defendants with regard to the closing of the door marked by word ‘Ka’ in rough sketch map (Schedule-II) was completely illegal and a decree for its removal was to be passed, the said relief having been allowed by the aforesaid judgment and decree which had attained finality, the plaintiff-decree holder was quite entitled to get the said relief executed through the process of the court and the executing court was duty bound to execute the same. 17. Furthermore order dated 17.08.2004 (Annexure-4) passed by the learned Subordinate Judge-I, Buxar in Misc. Case No.04 of 2001, was merely with respect to relief no.2 concerning the land, but no mention therein had been made regarding relief no.1 of the plaint concerning the door. Hence the defendants- 8 judgment debtors-petitioners cannot legally get any advantage from the said order and the plaintiffs-decree holders-opposite parties are fully entitled to get the said relief executed. 18. From the prayer made in his application dated 21.05.2005(Annexure-6), it is quite apparent that the plaintiff- decree holder has sought no relief except relief as claimed in relief no.1 of the plaint, which had been decreed in full by the learned court below. Thus the learned court below was quite justified in allowing the said prayer of the plaintiff-decree holder and in rejecting the objections filed by the defendants-judgment debtors. 19. In the aforesaid facts and circumstances, this court does not find any illegality or jurisdictional error in the impugned order of the learned court below. Accordingly, this civil revision is dismissed. harish/ ( S. N. Hussain, J. )