Defendant in a partition suit challenged dismissal of his Section 47 CPC application alleging the Partition Commissioner altered the original map in executing the final decree. The High Court held such grounds fall outside Section 47, declined interference, and left him free to appeal against the final decree subject to condonation of delay.
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S/L 1 07.8.2024 Court No.19 SD
IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION
CO 559 of 2023
Pradip Gayen Vs.
Swapan Gayen & Ors.
Mr. Anirban Mitra Mr. Amit Halder
… for the Petitioner.
Mr. Sudip Sarkar Mr. Anindya Sundar Das
… for the Opposite Party.
Affidavit of service filed on behalf of the petitioner be kept with the record.
The matter has been brought to the list on mentioning of Mr. Anirban Mitra, learned advocate for the petitioner, for release as he was praying for immediate hearing, however, now he prays that the matter may be heard on merit.
Prayer is allowed.
The defendant in a suit for partition is the petitioner of the instant application under Article 227 of the Constitution of India and is directed against the order dated December 16, 2022 passed by the 1st Court of learned Civil Judge (Senior Division) at Basirhat, District 24 Parganas (North) in Misc. Case No.11 of 2022 arising out of Title Execution No.3 of 2020 .
Mr. Mitra submits that the suit was decreed ex parte in preliminary form, so also in the final form. The petitioner came to learn about the said decree only when it was put into execution, as such, by an application under
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Section 47 of the Code of Civil Procedure has questioned the execution and satisfaction of the said final decree on the ground that the original map of the suit property was changed by the Partition Commissioner .
It appears from the record that the said application was registered in the said Execution Case as the Misc. Case No.11 of 2022 and the Executing Court by the order impugned has dismissed the said Misc. Case.
The grounds on which the petitioner has questioned the executability of the said final decree of partition do not come within the purview of Section 47 of the Code; therefore the order impugned does not call for any interference.
However, it is always open for the petitioner to assail the final decree of partition on appeal, subject to condonation of the delay.
CO 559 of 2023 is disposed of with the above observations without any order as to costs.
Parties to act on the server copy of this order duly downloaded from the official website of this Court.
Urgent Photostat certified copies of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Biswajit Basu, J.)
1 issue framed by the court
Whether an executing court can question a final decree of partition on the ground that the Partition Commissioner changed the original map, under Section 47 CPC.
2 provisions across 2 enactments
Pradip Gayen
Swapan Gayen
Biswajit Basu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
