IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1349 of 2006 AJIT MAHTO @ AJIT KUMAR MAHTON son of late Ram Bilash Mahto, resident of village Tulsipur, P.O. Chorghat, Police Station Old H. Kharapur, Police Station Old H. Kharapur, Police Station Bariarpur, District Munger… … … … Petitioner/Judgment Debtor Versus 1. Ram Prakash Mahto son of Babu Ayodhya Prasad Mahto, 2. Ravi Prakash Yadav, 3. Udai Prakash Mahto, 4. Bijay Prakash Mahto, all sons of Ram Prakash Mahto, 5. Sachidanand Mahto son of Hriday Narain Mahto, all residents of village Tusipur, P.O. Ghorghat, Police Station Old Sekhargpur New P.S. Bariyarpur, District Munger… Opposite Parties/Decree Holder For the Petitioner: Mr. Sanjeev Ranjan, Advocate For Opp.Party No. 3 : Mr. Harshavardhan Sahay, Advocate ----------- 5 14.09.2009 Heard learned counsel for the petitioner and learned counsel for opposite party no. 3. This civil revision is directed against the order dated 24.05.2006 passed in Title Execution No. 7/95, whereby the petition filed by the judgment debtor-petitioner under section 47 of the Code of Civil Procedure (hereinafter to be referred to as “the Code”) has been rejected by the court concerned. Learned counsel for the petitioner submitted that it would be manifest from the judgment of Title Suit No. 77/70 that pucca house was excluded from partition. However, subsequently, the house of Khathgola was included in the Pleader Commissioner’s report at the time of preparation of final decree. The petitioner 2 objected to that, but the same was rejected by the court below and it was held therein that actually the house of Kharagpur was excluded. It is further submitted that at the time of execution also this objection was raised by filing a petition under section 47 of the Code, but the same has been rejected by the court below. Learned counsel for the petitioner has placed reliance upon a decision of the Supreme Court in Babusaheb Singh and others v. Prasid Narain Singh and others, reported in 1992(1) Patna Law Journal Reports(SC), 13). In the aforesaid decision, the Supreme Court has held that even though the learned counsel for the petitioner gave up the point of inconsistency in preliminary decree at the time of hearing of appeal, aggrieved party was competent to raise that point of inconsistency during the proceeding of execution of such decree. Learned counsel for opposite party no. 3 has submitted that a bare perusal of the plaint itself goes to show that in the schedule II the house concerned stands described as the house of Kharagpur, whereas the excluded plot no. 104 is of Kathgola. This matter was agitated by the petitioner at the time of preparation of the final decree and by a detailed order the aforesaid objection raised on behalf of the petitioner was rejected by the court concerned. The court below has held that in fact, the house of Kharagpur was excluded, and, therefore, final decree was prepared 3 excluding the house of Kharagpur. The petitioner has not challenged that final decree by filing any appeal. However, after effecting the delivery of possession on 27.04.2005 a petition under section 47 of the Code raising objection was filed by the petitioner. That petition has been rightly rejected by the court below, as the final decree already stood satisfied. This Court is of the opinion that the decision of the Apex Court in Babusaheb Singh and others(supra) would be of no help to him, as, in that case, the matter of inconsistency in between the portion of the judgment and preliminary decree was raised in appeal and the learned counsel for the party had gave up that point, however, the Apex Court held that such concession would not preclude the party from raising that point at the time of execution of the decree. In the present case, the petitioner has raised his objection and the same had been rejected by the executing court. In that view of the matter, I do not find any jurisdictional error in the impugned order. As a result, this civil revision is dismissed. SC ( Dr. Ravi Ranjan, J.)