Dismissed

Food Corpn.of India v. Syama Sundar Barik

Orissa HC15 Mar 2017WP(C)/4719/2006

Case brief

AI extract

What is this about?

The High Court held that an executing court cannot be directed by a judgment debtor to compel the decree holder to sell suit property at an offered price. The court found that entertaining such a petition would lead beyond the decree and thus exceeded the executing court's authority. The writ application seeking quashment of the rejection of the petition was dismissed.

What did the court decide?

The writ application seeking quashment of the executing court's order rejecting the petitioner's petition to compel sale of the suit land was dismissed.

10. 15.3.2017 The petitioner by filing this writ application under A rticle 227 of the Constitution seeks quashment of an order dated 22.9.2005 passed by learned C ivil Judge (Sr.Divin.), Keonjhar in Execution Case No. 42 of 2003.

The petitioner is the Judgment Debtor in the above noted execution cas e which was filed by the opp.parties to execute the decree passed in their favour in T.S. No. 130 of 1995 further confirmed in T.A No. 59/31 of 1999/02.

2. The opp.parties as the plaintiffs having filed the above noted suit ha ve become successful in getting the decree declaring their right, title and interest over the suit property. The trial court having found the possession of the suit land by the petitioner- defendant as illegal had of course directed them to get a proceeding under Land Acquisition Ac t initiated to acquire the same within three months and accordingly termination of the same by payment of the market price to the plaintiff. The decree further mandated that on failure to take up above exercise, the opp.parties-plaintiff would be having the liberty to recover of th e possession of the suit land from the petitioner. The judgment having been passed by the tria l court on 10.9.1999, it stood confirmed in an appeal filed by the appellant-petitioner in the year 2002. The opp.parties thereafter filed the execution case in the year 2003. In that exec ution proceeding, the petitioner as the Judgment Debtor filed a petition expressing willingnes s to purchase the suit land on payment of price of Rs.28,000/- per decimal. The opp.parties (D ecree Holder) did not agree to the said proposal. Learned executing court keeping in view that it cannot travel beyond the decree has refused to pass any order directing the opp.parties (D ecree Holder) to sell the suit land at the offered price to the petitioner (Judgment Debtor). A revision being carried by the petitioner, the same has been dismissed as not maintainable. 3. Heard learned counsel for the petitioner and learned counsel for the o pp.parties.

I have carefully read the judgments of the trial court passed in T.S. No. 130 of 1995, learned first appellate court in T.A. No. 59/31 of 1999/02 as also the order in question passed in Execution Case No. 42 of 2003.

4. The execution case has been filed for recovery of possession of the su it property in question. It had been directed by the trial court that unless a land acquisitio n is initiated within the time frame and proceeds further with its termination on payment of m arket price to the opp.parties-plaintiff, they would be at liberty to recover possession of th e same from the petitioner-defendant. It may be stated here that a categorical finding has bee n recorded by the trial court which has also been affirmed by the first appellate court that t he suit land has been in illegal possession of the petitioner-defendant. When land acquisition proceeding has not been initiated and instead the petitioner having challenged the judgment a nd decree passed in the suit by carrying the first appeal and thereafter when no further devel opment has taken place, the petition by the petitioner (Judgment Debtor) offering a price to p urchase the land in suit praying the executing court to so direct the opp.parties (Decree Hold er) to sell the same is not at all maintainable in the eye of law. By that petition the execut ion of a valid decree cannot be thwarted. The subject matter of the petition as also the praye r when are viewed those seem as if that the executing court at the instance of Judgment Debtor would compel the Decree Holder to note down the discharge of the decree which he has sought t o execute. In the facts and circumstances that does not remain within the legal domain of the executing court.

Such a petition in my considered view does not have the backing of law . The executing court therefore has rejected the said petition rightly holding that in case su ch petition is entertained for deciding as to if a favourable order as prayed for can be passe d, the same would be leading beyond the decree which is impermissible. This Court thus finds t hat the learned executing court has acted perfectly within the bounds of its authority in pass ing the impugned order.

Food Corpn.of India v. Syama Sundar Barik

Case brief

What is this about?

What did the court decide?

Food Corpn.of India v. Syama Sundar Barik

Case brief

What is this about?

What did the court decide?

What the court decided

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