CRP 59/2010 BEFORE THE HON’BLE MR JUSTICE B.P.KATAKEY It appears from office note dated 20th April 2010 that while the a/d cards in re spect of the notices sent to respondent Nos.1 to 4 have reached the registry aft er due service, such cards in respect of notices sent to respondent Nos.5 to 8 h ave not. Office note dated 26th February 2010 reveals issuance of notices on all the respondents by Regd post with a/d, including the proforma-respondents, on 2 6th February 2010. Such notices had been issued at the addresses given in plaint . Since more than 30 days have elapsed from the date of issuance of such n otices and neither the un-served notice nor the a/d cards have returned to the r egistry, the notices on respondent Nos.5 to 8 are deemed to have been served. No ne appears on behalf of the respondents, except respondent No.3, though the resp ondent No.2 had filed the affidavit supporting the case of the petitioner. 2) Heard Mr C Baruah, learned senior counsel for the petitioner. Also, hear d MrP Upadhaya, learned counsel for the respondent No.3. 3) Learned counsel for appearing parties submitted that during pendency of this revision the respondent No.1 died and his legal heirs, i.e. respondent Nos. 2 to 8, are already on record. 4) The petitioner who is the decree-holder and has instituted Title Ex. Cas e No.23/2008, by this application, is challenging order dated 22nd January 2010 passed by learned Munsiff No.1, Dibrugarh, disposing the said proceeding on the basis of the report submitted by the Nazir on 5th January 2010 by holding that t he decree passed in TS No.82/2006 was satisfied. 5) Learned senior counsel for the petitioner/decree-holder submitted that t hough writ-of-possession was issued by the learned executing Court in Title Ex.C ase No.23/2008 to give delivery of possession of the decreetal land to the decre e-holder, the petitioner, by removing all kinds of obstructions, if there be any , with the help of revenue authority,. the Nazir, on 4th January 2010, after tak ing measurement of the scheduled land and demarcating thereof, had shown the bou ndary of the decreetal land to the decree-holder without demolishing the structu res over the said land, though, in the writ issued, there was specific direction for demolition of the structures, if any, standing thereupon. According to lear ned senior counsel, the decree-holder, therefore, on 16th January 2000, had file d an application in the said execution proceeding before the learned executing C ourt, contending that decree has not been fully executed in terms of the writ is sued and as such, prayed for a direction to execute the decree in full, which wa s not considered by the learned executing Court at the time of passing the impug ned order dated 22 January 2010. Learned senior counsel, therefore, submits that order dated 22nd January 2010 passed by learned executing Court may be set asid e and the said Court be directed to consider application dated 16th January 2010 and pass necessary order. 6) Learned counsel for the respondent No.3, on the other hand, submitted th at though initially in the judgment passed in Title Suit No.82/2006 no decree fo r delivery of khas possession was passed, the same was modified by learned execu ting Court vide order dated 12th November 2009, which ought not to have been don e by the learned executing Court. Learned counsel, therefore, submits that the w rit-of-possession, therefore, ought not to have been issued on basis of the orde r dated 12th November 2009. Learned counsel, however, submits that at the time o f passing the order dated 22nd January 2010 the application filed by present pet itioner/decree-holder on 16 January 2010 has not been considered. It has also be en submitted that against the judgment and decree passed on 7th June 2006 in TS No.82/2006, an appeal being Title Appeal No.23/2007 was preferred, which is pend ing for disposal with the learned first appellate Court, wherein, however, no in terim order staying execution of the decree, or staying further proceeding in Ti tle Ex. Case No.23/2008, had been passed either. 7) It appears that by the order dated 12 November 2009 passed by learned Mu nsiff No.1, it is clarified that possession of share of petitioner/decree-holder was also passed as per partition effected by the revenue authority and in terms of the judgment passed. The said order has not been put to challenge by any of the respondents-herein. On the basis of the said order, the writ-of-possession w as issued by the learned executing Court on 17th December 2009, directing the Ba iliff(Nazir) of that Court to deliver the possession of the suit land to the dec ree-holder by removing all kinds of obstructions, if any, with the help of the r evenue authority. The Nazir, thereafter, on 5th January 2010, submitted a report relating to the execution of the decree. The petitioner, however, on 16th Janua ry 2010, filed an application before the executing Court contending inter alia t hat the decree has not been fully executed in terms of the writ issued. By the s aid application, a prayer for a direction to the Bailiff to deliver the possessi on by evicting all kinds of persons from the suit premises was made. The learned executing Court, thereafter, on 22 January 2010, disposed of the Title Ex. Case No.23/2008 on basis of the report submitted by the Nazir on 5.1.2010, without, however, considering the application dated 16.1.2010 filed by the petitioner/ de cree-holder. 8) Since such an application was filed alleging that the Bailiff of the Cou rt had not fully executed the decree in terms of the writ issued, the learned ex ecuting Court is duty-bound to consider the same before passing any order. As no ticed above, the said application dated 16th January 2010 has not been considere d and the learned executing Court, without considering the same, passed the orde r dated 22nd January 2010, disposing of the Title Ex. Case No.23/2008. 9) That being the position, order dated 22nd January 2010 passed by the lea rned executing Court is set aside. The matter is remitted to the learned executi ng Court to hear the parties on the application dated 16th January 2010 filed by the petitioner/decree-holder and upon consideration of the same as well as the materials available on record shall pass necessary order in accordance with law, preferably within a period of fourty-five days from the date of appearance of p arties. The petitioner as well as the respondent No.3 are directed to appear bef ore the learned executing Court on 21st April 2011, who shall issue notice to th e other parties, since they are not represented in the present proceeding. 10) The revision petition is allowed to the extent indicated above. No costs .