Jagannath Sangma Vs Nilu Sah

Heard Mr. B. D. Deka, the learned counsel appearing on behalf of the petitioner and Mr. S. K. Goswami, the learned counsel appears on behalf of the respondent.

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This is an application filed by invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution challenging the order dated 17.03.2021 passed in Petition No.226/2021 arising out of Title Execution Case No.02/2014 whereby the said application filed by the petitioner was rejected.

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For the purpose of appreciating the facts which led to the filing of the petition being Petition No.226/2021 as well as the present application, it is relevant to take note of the brief facts of the instant proceedings. It is seen that the respondent herein along with one Apurba Adhikari had filed a suit being Title Suit No.29/1999 seeking recovery of possession, i.e. for declaration that the plaintiffs had right, title and interest over the suit property and for possession of the suit property described in Schedule-A and Schedule-B to the plaint by evicting the defendant and by demolishing the houses and structures standing thereon. The petitioner herein was the defendant No.25. It is seen from the judgment dated 12.03.2001 passed in Title Suit No.29/1999 and more particularly at paragraph No.4 that there are two Schedules to the plaint. Schedule-A was a plot of land admeasuring 1 bigha 2 kathas 10 lechas covered by Dag. No.557 of Khatian No.48 situated at Baladmari Bapujinagar under Revenue Circle Balijana in the district of Goalpara and the Schedule-B was a plot of land admeasuring 2 kathas 12 lechas

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covered by Dag No.68 and included in Patta No.300 of Goalpara Town (Chandina) within the Revenue Circle Balijana in the district of Goalpara. Most of the defendants in the said suit filed their written statement.

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A further perusal of the said judgment dated 12.03.2001 would show that on the basis of the pleadings, the learned Trial Court framed as many as 9 issues. Issue Nos.5 & 9 are of importance which reads as under:-

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“5. Whether the plaintiff No.1 has right, title to the suit property?

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Whether the plaintiffs are entitled to the reliefs prayed for?”

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The learned Trial Court while deciding the Issue No.5 after taking into account the evidence of the PW1 (plaintiff No.1) observed that the plaintiff No.1 had stated in the crossexamination that she had no claim over the ‘A’ Schedule land, and accordingly, decided the said Issue No.5 in favour of the plaintiffs. This aspect is reflected in the decision as regards Issue No.9 wherein the learned Trial Court observed that the plaintiff No.1 had right, title upon the ‘B’ plaint Schedule mentioned land. The relevant observation of the learned Trial Court in respect to Issue No.9 reads as under:-

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“ Accordingly, the plaintiff No.1 has right, title upon the ‘B’ plaint Schedule mentioned land, since the plaintiff No.1 has not claimed ‘A’ plaint Schedule described land”.

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The learned Trial Court further declared that the plaintiff No.1 had right, title upon ‘B’ plaint Schedule described land, and as such, would be entitled to evict the defendants by demolishing the houses and structures standing thereon.

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Pursuant to the said judgment dated 12.03.2001, a decree was prepared. The decree so prepared categorically mentioned inter-alia that the plaintiff No.1 had right, title and interest over the ‘B’ plaint Schedule described land and the plaintiff was entitled to evict the defendants by demolishing houses and structures standing thereof.

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Subsequent thereto, in the year 2002, an application was filed under Section 152 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) by the decree holder stating inter-alia that there is a requirement for correction in the decree in as much as while preparing the decree, the land described in Schedule-A of the plaint was omitted by accidental slip for which execution in respect of ‘A’ Schedule land could not be executed. It was further stated as appears from a reading of the order dated 04.05.2002 that the decree holders had already obtained the possession of the Schedule-B land.

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It is surprising to take note of that the learned Trial Court even without issuance of any notice to the other defendants/judgment debtors exercised the power under Section 152 of the Code and vide an order dated 04.05.2002 directed that the decree be amended and the land described in ScheduleA of the plaint be included within the ambit of the decree.

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The defendant No.25 who is the petitioner herein had no notice about the said aspect. The petitioner upon receipt of notice about an execution proceedings being Titled Execution Case No.02/2014 filed an application for correcting the decree in terms with the judgment dated 12.03.2001 by deleting the Schedule-A from the decree. The said application was registered as Petition No.226/2021. It is in the said backdrop, the impugned order dated 17.03.2021 was passed rejecting the Petition No.226/2021 for which the present proceedings is instituted.

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Mr. B. D. Deka, the learned counsel appearing on behalf of the petitioner submitted that the petitioner was the defendant No.25 in the suit proceedings and a perusal of the judgment dated 12.03.2001 would clearly show that there was no declaration of any right, title and interest granted in respect to the Schedule-A property as well as for recovery of possession. The declaration of right, title and interest was only in respect to the Schedule-B property and for recovery of possession. Under

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such circumstances, the petitioner who was in possession in respect to the Schedule-A land had nothing to worry. The learned counsel for the petitioner further submitted that initially the decree which was made pursuant to that judgment was in terms with the said judgment dated 12.03.2001. Subsequently, the said decree was altered vide an order dated 04.05.2002, that too without any notice. The petitioner had no knowledge about the said alteration and it only came to light when notices were issued in Title Execution Case No.02/2014 which necessitated the petitioner to file an application seeking for correction of the decree in terms with the judgment. This aspect was not at all considered by the learned Executing Court while passing the order dated 17.03.2021. The learned counsel for the petitioner further drew the attention of this Court to the provision of Order XX Rule 6 of the Code wherein it has been mentioned that the decree shall agree with the judgment. He therefore submitted that without there being any review to the said judgment dated 12.03.2001 or the said judgment being modified in accordance with law, the decree could not have been changed.

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Per contra, Mr. S. K. Goswami, the learned counsel appearing on behalf of the respondent submitted that in the judgment dated 12.03.2001, the learned Trial Court had committed an error apparent on the record in misreading the

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evidence in as much as there was nothing mentioned in the evidence of the PW1 that she had no claim over the Schedule-A land. It is under such circumstances, as there was an accidental slip while deciding the Issue No.5 and Issue No.9 in the judgment dated 12.03.2001, the application was filed under 152 of the Code for correction of the same.

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I have duly perused the judgment dated 12.03.2001 as well as the order dated 04.05.2002. From a perusal of the judgment dated 12.03.2001, it is apparent that while deciding the Issue No.5, the learned Trial Court had categorically observed that the PW1 who was the plaintiff No.1 had herself admitted during cross-examination that she had no claim over the Schedule-A land and this very aspect could be also seen while deciding the Issue No.9 wherein the learned Trial Court categorically observed that the plaintiff would only be entitled to a declaration of right, title and interest along with recovery of khas possession only in respect to the Schedule-B land and not to the Schedule-A land.

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This Court has further taken note of the order dated 04.05.2002 which was passed on an application seeking correction of the decree so made. It is relevant to observe that there is no order passed whereby the judgment dated 12.03.2001 was modified or corrected. What was corrected vide the order dated 04.05.2002 was only the decree.

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This Court further takes note of the provision of Order XX Rule 6 (1) of the Code which categorically mentions that the decree has to agree with the judgment. It is also relevant to take note of that the said order dated 04.05.2002 was passed behind the back of the petitioner as well as the other defendants.

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Under such circumstances, the order dated 04.05.2002 by which the decree was amended thereby to include the ScheduleA land is not only in contrary to Order XX Rule 6 (1) of the Code, but also violates the fundamental principles of natural justice.

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Considering the above, the order dated 04.05.2002 and the amended decree made on the basis of the order dated 04.05.2002 is a nullity in the eyes of law. In view of the above observations, the application so filed by the petitioner seeking drawing up of the decree in terms with the judgment dated 12.03.2001 ought to have been allowed by the learned Executing Court.

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Accordingly, the instant petition stands allowed thereby declaring that the order dated 04.05.2002 by which the decree was amended by the learned Trial Court, i.e. the Court of the Civil Judge (Senior Division) Goalpara vide the Petition No.465/02 as well as the decree thereafter on the basis of the order dated 04.05.2002 are nullity in law. The learned Trial Court, i.e. the

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Court of the Civil Judge (Senior Division) Goalpara is directed to take effective steps for drawing of the decree in terms with the judgment dated 12.03.2021.

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Before parting with the record, this Court further takes note of the submission of Mr. S. K. Goswami, the learned counsel for the respondent who submitted that there was an error apparent on the face of the record in the judgment dated 12.03.2001. He further submitted that in view of the correction being made on 04.05.2002 by the learned Trial Court thereby making correction to the decree, there was no requirement for the respondent herein who was the plaintiff No.1 to take any further steps.

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Taking into account above, this Court grants the liberty to the respondent herein to file a review application or an Appeal, if so advised against the judgment dated 12.03.2001 and the period of from 04.05.2002 till date be excluded while computing the period of limitation.

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With the above observations and directions, the instant proceeding stands disposed of and taking into account that there is no decree at present in so far as the Schedule-A land and Execution proceedings being Title Execution Case No.02/2014 which is only in respect to the Schedule-A land cannot be further allowed to be continued and accordingly stands closed.

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With the above observations and directions, the present

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application stands disposed of.

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JUDGE

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Comparing Assistant

Jagannath Sangma v. Nilu Sah

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Jagannath Sangma v. Nilu Sah

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