IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1399 of 2009 SARIFAN BANO, Daughter of Md. Siddique, resident of Village- Sarwan Bazar, Police Station- Kotwali, Post Office- Munger, District- Munger. . . . . . . Defendant 1st party-Judgement Debtor -petitioner. Versus 1. KANTI DEVI widow of Shivnandan Mandal, resident of Mohalla- Topkhana Bazar, Police Station Kotwali, Post Office-Munger, District Munger 1. (a) Ashok Kumar, 1. (b) Rakesh Ranjan 1. © Ram Parvesh Kumar 1. (d) Gunja Kumari Sons and daughter of Late Shivnandan Mandal, all resident of Mohalla- Topkhana Bazar, Police Station Kotwali, Post Office-Munger, District Munger. . . . . . Plaintiffs- Decree Holders- Opposite 1st Party. 2. Raj Kumari Devi, wife of Kamleshwari Prasad Sao, resident of Mohalla- Puraniganj, Police Station- Kotwali, Post Office-Munger, District Munger. Defendant IInd Party- Judgment Debtor - Opposite IInd Party. 3. Mosmt. Sita Devi, wife of Udit Narayan Saw, 4. Mosmt. Giraja Devi alias Sunita Devi, wife of Raj Kumar Sao 5. Pinki Kumari. 6. Rinki Kumari 7. Sonney Kumari Daughers of Raj Kumar Sao 8. Pappu Kumar Sao, son of Raj Kumar Sao. Respondent nos. 3 to 8 are resident of Mohalla Ghosiar, Police Station Kotwali, Post Office-Munger, District Munger. Defendant 3rd Party-Judgement Debtor - Opposite 3rd Party. 9. Nasim Bano Nartaki, Daughter of not known to the petitioner 10. Kamta Bai Nartaki, Daughter of not known to the petitioner. Both resident of Mohalla- Sarwan Bazar, Police Station- Kotwali, Post Office-Munger, District Munger. Defendant 4th party-Judgement Debtor - Opposite 4th Party. 11. Chanda Bai daughter of Sahjahan 12. Ruhi Bano Nartaki, daughter of not known to the petitioner 13. Kalloo Bai Nartaki, daughter of not known to the petitioner. All resident of Mohalla- Sarwan Bazar, Police Station- Kotwali, Post Office-Munger, District Munger. Defendant 5th party-Judgement Debtor - Opposite 5th Party. . . . . Opposite Parties. For the Petitioner : Mr. S. Raza Ahmad, Sr. Advocate with Mr. Harshwardhan Sahay, Advocate For the O.P.: Mr. V. Nath, Advocate with Mr. Bishwajeet Singh, Advocate ----------- - 2 - 7/ 16.09.2009 Heard learned counsel for the petitioner and learned counsel for opposite party no.1. 2. This civil revision has been filed by the defendant-judgment debtor-petitioner challenging order dated 20.07.2009 passed by learned Sub-Judge-II, Munger rejecting her application under Section 47 of the Code of Civil Procedure (hereinafter referred to as „the Code‟ for the sake of brevity) in Execution Case no. 02 of 1998. 3. The instant matter arises out of Title Suit No. 57 of 1985 which was filed by plaintiff-decree holder- opposite party no.1 for declaration of title and confirmation of constructive possession over Schedule-A property and further for a decree of eviction of defendant no.1-judgment debtor-petitioner from Schedule-C property which formed part of the Schedule-A property of the plaint. The said suit was decreed on contest by learned Sub-Judge-II, Munger vide his judgment and decree dated 21.05.1996. 4. The defendant-petitioner challenged the said judgment and decree of the trial court in Title Appeal No. 19 of 1996 (21 of 1998) which was dismissed by the learned 7th Additional District Judge, Munger vide his judgment dated 15.06.1999. The said judgment and decree of the learned courts‟ below was challenged by the judgment debtor-petitioner in S.A. No. 270 of 1999, which was dismissed at the stage of hearing under Order XLI Rule 11 of the Code on 08.01.2002 by this Court. The said order of this court was challenged by the defendant-petitioner in Civil Appeal No. 3484 of 2002 which has also been dismissed by the Hon‟ble Apex Court on 15.04.2009. In the said - 3 - circumstances, the judgment and decree of the learned trial court dated 21.05.1996 passed in T.S. No. 57 of 1985 stood affirmed uptil the highest court of Justice. 5. It further transpires that for execution of the aforesaid decree dated 21.05.1996 passed in T.S. no. 57 of 1985 the plaintiff-decree holder-opposite party no.1 filed Execution Case no. 02 of 1998 and while the said execution case was pending the defendant-judgment debtor- petitioner filed an application under Sections 47 and 151 of the Code claiming that the said decree which was affirmed up till the Hon‟ble Apex Court was not executable because there was no description of the property from which defendant was sought to be ousted namely Schedule-C property either in the plaint or in the decree and the reference was only vague, incomplete or unidentifiable. The said claim was contested by the plaintiff-decree holder- opposite party no.1 who filed his rejoinder on 16.07.2009. However, considering the facts and circumstances of the case learned court below rejected the said application of defendant-judgment debtor vide its order dated 20.07.2009, which is under challenge in the instant civil revision. 6. Learned counsel for the petitioner while challenging the impugned order, has specifically claimed that the contents of the plaint as well as Schedule thereof and the decree prepared by the learned trial court did not give any detail of the property from which she was sought to be evicted and hence the said decree was not executable unless the said portion from which he is sought to be - 4 - evicted is identified and for that purpose learned court below before passing the impugned order should have resorted to an enquiry into the said matter, which not having been done, the impugned order is absolutely illegal, arbitrary and perverse and an error of jurisdiction has been committed. In this regard he has relied upon a decision of the Hon‟ble Apex Court in case of Pratibha Singh & another vs. Shanti Devi Prasad and another reported in AIR 2003 SC 643. 7. Learned counsel for plaintiff-opposite party no.1 opposes the contentions of the learned counsel for the petitioner. 8. From the arguments of learned counsel for the parties and the materials on record including plaint, decree and impugned order of learned court below, it is quite apparent that the details of the house over which declaration of title was sought by the plaintiff had been fully and properly described in Schedule A of the plaint whereas the portion of the said Schedule A from which the defendant was sought to be evicted has been given in Schedule C of the plaint. From a perusal of Schedule C it transpires that it mentions that “detail of the portion of Schedule A in possession of defendant 1st party as tenant on the basis of delivery of possession in T. Ex. no. 33 of 1974 of Munsif II, Munger”, but in paragraph 5 of the plaint it has been specifically stated “that the defendant 1st party have been occupying a portion of the suit house in 1st floor from the southern side at a rental of Rs. 60/- per month and another portion of the 1st floor has been in occupation of another tenant Kanta Bai and Naseem Bano, who are made defendant 4th party”. In the said circumstance, reading Schedule C - 5 - along with paragraph 5 of the plaint it transpires that sufficient description of the house from which defendant no.1 was sought to be evicted has been given in the plaint. 9. Learned court below has very carefully considered the matter and has also arrived at the finding that from perusal of the decree passed in Title Execution no. 33 of 1974 the execution will be effected over Schedule C property situated on the southern portion of the first floor of Schedule A property in which defendant no.1- judgment debtor was residing and the boundary of the entire purchased property has been shown in Schedule A and hence Schedule C property being part and parcel of Schedule A property, the description was complete. 10. So far the case law in the case of Pratibha Singh & another (supra) is concerned, it has been specifically held therein that if the property in the suit is not definitely identifiable, resort can be taken to Section 152 or Section 47 of the Code, as the case may be and an enquiry may be held to ascertain the exact description of the property. In the instant case, there is neither any inadvertent error nor the execution case is going to affect the merit of the decree of the trial court which has been affirmed up till the Hon‟ble Apex Court. Furthermore from the description given in the statements of facts as well as in the Schedule of the plaint, the premises (Schedule C), from which defendant no.1 was sought to be evicted, was definitely identifiable. Thus the said case law is not applicable to the facts of this case and there was no occasion to take any resort to Section 152 or - 6 - Section 47 of the Code. 11. In the said circumstances, this court does not find that any enquiry is necessary in the matter to ascertain the exact description of the property which is quite apparent from the records itself as has been rightly found by learned court below. This court does not find any illegality in the impugned order of learned court below nor does it find any jurisdictional error therein. Accordingly, this civil revision is dismissed. Uday/ (S. N. Hussain, J.)