JUDGMENT
I.A. Ansari, J.
1. The present revision petition reminds one of the slow pace with which the wheels of administration of justice, at times, move, for, the present one is a case, wherein the plaintiff had knocked the doors of the Court about 20 years ago and though his suit, eventually, succeeded, he died without seeing his effort bearing fruits and his legal representative is, now, before this Court with the present revision petition.
2. Before I deal with the questions, which have been raised in the present revision, necessary it is that the material facts and various stages, which have given rise to the present revision, may be briefly set out thus : The present petitioner’s father, late Radhamohan Sahani, purchased, by a registered sale deed, dated 1.12.1976, a plot of land measuring one Bigha one Katha from five joint patta-holders of the land, namely, Lakhi Das, Maniram Das, Srimati Phuleswari, Golok Das and Akani Das. The petitioner’s father had already been in possession of 8 Lessas of the land, when he purchased the land; but the remaining part of the land, namely, 1 Bigha and 12 lessas remained in the possession of the vendors and one Sarbeswar Chutia, who had laid claim of adverse possession over the land. Unable to recover the possession of the land, which he had so purchased, the petitioner’s father instituted Title Suit No. 34/1977 (renumbered as TS No. 46/1978) against the said vendors and Sarbeswar Chutia aforementioned for, inter alia, declaration of his title to the entire plot of the land purchased by him and also for recovery of possession of that portion of the land, which he had not been able to occupy. This suit was dismissed. An appeal was preferred by the petitioner’s father and by judgment and decree, dated 10.4.1981, passed in Title Appeal No. 36/1979, the appeal was allowed in favour of the petitioner’s father. Still not satisfied, the defendants preferred a second appeal and, by judgment and decree, dated 17.5.1990, passed in Title Appeal No. 97 of 1981, this Court upheld the judgment and decree passed by the learned first appellate Court. The petitioner’s father, then, put the decree into execution by instituting Title Execution No. 07/1990. This time, the petitioner’s father was resisted from realizing the fruits of the decree by the present opposite party, namely, Sri Narakanta Saikia, insamuch as the opposite party herein instituted a suit for declaration that the decree, which the petitioner’s father, had obtained, was not binding on the opposite party herein. This suit, upon contest, was, eventually, dismissed and the appeal preferred by the opposite party herein against the dismissal of the suit also ended in dismissal. Upon death of the petitioner’s father, the petitioner persued Title Execution Case No. 07 of 1990 aforementioned and, ultimately, a warrant of delivery of possession, under Order 21 Rule 35 of the Code of Civil Procedure (in short “the Code”), was issued requiring the bailiff of the Court to clear the land of all obstructions and deliver vacant and khas possession thereof to the present petitioner by evicting the opposite party herein and others from the said land. The learned Executing Court also issued directions for providing assistance of the revenue staff (i.e., Lat Mandal) and police force to the bailiff so as to help him execute the decree and fixed 1.10.2004 for report of the bailiff as regards the execution process. On 18.9.2004, in execution of the warrant of delivery of possession, the petitioner was given possession of the land by the bailiff as shown to the bailiff by the Lat Mandal. However, the present petitioner filed, in the said execution proceeding, a petition, on 29.9.2004, i.e., two days ahead of 1.10.2004 (i.e., the date fixed for submission of the report of the bailiff), stating, inter alia, that though his signature was taken on the execution process of delivery of possession in satisfaction of the decree, delivery of the entire land, covered by the decree, had not been handed over to him and that the execution of the decree suffered from deficient delivery of possession to the extent of 1 Katha 4 Lessas, the decree-holder’s further case being that on 18.9.2005, under the impression that he had been given possession of the entire decretal land, he (i.e., the petitioner), as the decree-holder, had put his signature on the relevant papers but on coming to know, later on, that he had not been given delivery of possession of the entire land, covered by the said decree, he has filed the said petition. The petitioner accordingly prayed for an inquiry to be made in this regard and, for this purpose, sought for summons to be issued to the Lat Mandal so that the Lat Mandal could be examined in order to enable the petitioner to show deficient delivery of possession and also to enable the Court to direct further and complete execution of the decree. Based on this petition, the learned executing Court passed an order, on 1.10.2004, fixing the matter for examination of Lat Mandal on 25.11.2004. On the date, so fixed, i.e., 25.11.2004, while the Lat Mandal was present before the learned Executing Court, the learned Executing Court directed issuance of notice to the judgment-debtor. Ultimately, the judgment-debtor appeared in the proceeding and resisted the petition aforementioned by contending inter alia, that the decree already stood satisfactorily executed. Having considered the matter, the learned Court below passed an order, on 29.1.2005, dismissing the petitioner’s said petition by observing, inter alia, that since the petitioner had already put his signature on the process of execution regarding his satisfaction of the decree and when the Nazir’s report indicates that the possession of the decretal land has been handed over to the decree holder, no objection, as has been raised by the petitioner, is entertainable. Having so concluded, the learned Court below rejected the said petition. It is this order, dated 29.1.2005, which stands impugned, in the present revision, by the decree-holder.
3. I have heard Mr. T.C. Khetri, learned Senior Counsel, for the decree holder-petitioner, and Dr. Y.K. Phukan, learned Senior counsel, appearing on behalf of the judgment debtor-opposite party.
4. Appearing on behalf of the petitioner, Mr. T.C. Khetri, learned Senior counsel, submits that the present one is a case of deficient execution of a decree and a case of present nature is covered by the provisions of Section 47 of the Code, for, Section 47, according to Mr. Khetri, deals with execution, discharge or satisfaction of decree. In the case at hand, submits Mr. Khetri, the petitioner’s case is that the decree, in question, has not been fully satisfied and in such circumstances, the learned Court below ought to have given adequate opportunity to the petitioner, as the decree-holder, to satisfy the Court that there was deficient delivery of possession of the decretal land as had been complained by the decree holder. Mr. T.C. Khetri also submits that by refusing to let the petitioner examine the Lat Mandal and/or such other witnesses as were necessary for the purpose of proving deficient or incomplete execution of the decree, the learned Executing Court has refused to exercise jurisdiction, which stood vested in it. In such circumstances, contends Mr. Khetri, the impugned order deserves to be interfered with. In support of his submissions, Mr. Khetri places reliance on Julien Marret v. Mahomed Khaleel Shirazi & Sons and Ors. AIR 1930 PC 86, Merla Ramanna v. Nallaparaju and Ors. , Ummed Mal v. Kundanmal and Ors. , Poomalai v. Ramalingam and Fida Hussain v. Smt. Aisha Khatoon and Anr. AIR 1980 NOC (ALL).
5. Resisting this revision, Dr. Y.K. Phukan, learned Senior counsel, raises a preliminary objection to the maintanability of the revision petition by contending that Section 115 of the Code cannot be resorted to for the purpose of interfering with the impugned order, for, according to Dr. Phukan, revisional jurisdiction cannot be exercised to vary or reverse an order, unless the order, sought to be varied or reversed, could end the execution proceeding. In the present case, points out Dr. Phukan, even if this Court interferes with the impugned order, it would not end the execution proceeding and in such circumstances, the impugned order cannot be upset by invoking revisional jurisdiction of the High Court under Section 115. In the facts of the present case, according to Dr. Phukan, the only remedy available to the decree-holder is institution of a fresh suit and not in pursuing the execution case, for, the execution proceeding stands lawfully concluded the moment the decree-holder had put his signature on the warrant of delivery as a token of his satisfaction that the decree stood executed.
6. Controverting the submissions made on behalf of the opposite party, Mr. Khetri has pointed out that the proviso to Sub-section (1) of Section 115 relates to interlocutory orders and does not apply to final orders if, by refusing to exercise jurisdiction or by illegal exercise of jurisdiction, a Court brings to an end a suit or a proceeding.
7. In view of the fact that this revision has been resisted, at its very threshold, on the ground that it is not maintainable under Section 115, apposite it is to take note of Sub-section (1) of Section 115, which is reproduced hereinbelow :
115. Revision–(1) The High Court may call for the record of any case which ins been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears–
(a) To have exercised a jurisdiction not vested in it by law, or
(b) To have failed to exercise a jurisdiction so vested, or
(c) To have acted in the exercise of its jurisdiction illegally or with material irregularity.
The High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where–
(a) The order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) The order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
8. From a careful reading of the proviso to Sub-section (1) of Section 115, what transpires is that the revisional Court shall not vary or reverse any order made or any order deciding an issue in the course of a suit or other proceeding except where, (a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. The expression “in the course of a suit or other proceedings” is of material significance in the present case, for, a careful reading of this expression along with the remaining part of the provisions of Section 115 clearly shows that when an order is passed in the course of a suit or other proceeding, such an order would not be interfered with by invoking provision of Section 115 unless the person aggrieved by the order shows that if the order had been made in his favour, it would have ended the suit or the proceeding. Clearly, therefore, the proviso to Section 115 applies to the orders, which are passed during the course of a proceeding and do not bring to an end the proceeding. When an order, which has brought to an end a proceeding, is an order, which has been passed in exercise of a jurisdiction; which did not vest in the court or in refusal to exercise jurisdiction, which stood vested in the Court or where the order is passed illegally in exercise of jurisdiction or with material irregularity, such an order is not covered by the proviso to Sub-section (1) of Section 115.
9. Let me, now, turn to Section 47 of the Code, which is reproduced hereinbelow:
Section 47. Questions to be determined by the Court executing decree–(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
* * * * (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this Section, be determined by the Court. Explanation 1--For the purposes of this Section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II--(a) For the purposes of this Section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) All questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this Section.
10. A cautious reading of Section 47 shows that all questions, which arise between the parties to the suit in which the decree was passed, relating to execution, discharge or satisfaction of a decree shall be determined by the Court, which executes the decree and cannot be challenged by way of a separate suit. Thus, when a decree is not fully satisfied or discharged or executed, the remedy does not lie in filing a separate suit, but in making an application under Section 47 in the executing Court itself. If an Executing Court, in such a case, finds that the decree has not been fully satisfied, discharged or executed, it would become a duty of the Court to take all such steps, as are necessary and permissible in law, to fully execute, discharge or satisfy the decree.
11. Bearing in mind what is indicated above, when one turns to the impugned order, it becomes clear that if this Court holds that the learned Court below had the jurisdiction to decide as to whether the decree was completely executed or not, and if this Court also finds that in the context of the facts and circumstances of the present case, the learned Court below has not exercised the jurisdiction, which lawfully stood vested in it, there would be no impediment in invoking the revisional jurisdiction under Section 115.
12. In the backdrop of what has been indicated above, when the facts of the present case are taken into account, it becomes abundantly clear that the petitioner’s contention, as a decree-holder, was that the decree, put into execution, had not been fully executed, discharged or satisfied. Though the plea, which was so taken by the petitioner, may or may not be correct and true, the fact remains that when grievances had been expressed by the decree-holder that the decree had not been fully satisfied or executed, it was imperative for the learned executing Court to hold a proper inquiry in this regard and come to a clear finding either in favour of the petitioner or against him. Despite the fact that the learned Court below had, initially, directed appearance of the Lat Mandal in the Court, he was not allowed to be examined by the decree-holder and the proceedings were closed merely on the ground that the decree-holder had put, on the process of execution of delivery of possession, his signature indicating that the decree stood satisfied.
13. From the facts narrated above, it is transparent that the bailiff did not personally know the decretal land and it was for this reason that the assistance of the Lat Mandal had been provided to him. In such circumstances, duty it was of the learned Court below to let the petitioner examine the Mandal and ascertain if the decree had been fully satisfied or not. Merely on the ground that the petitioner had put his signature on the paper/document aforementioned, he could not have been denied his right under Section 47 of the Code to agitate, in the execution proceeding that notwithstanding the fact that he had put his signature as indicated hereinbefore, the decree had not been fully executed. It needs to be borne in mind that in the present case, the learned executing Court had fixed 1.10.2004 as the date fixed for submission of the report of the bailiff as regards the execution of the decree, in question. Before this report could be considered, the decree-holder had alleged incomplete execution of the decree. In such circumstances, the correctness and veracity of the allegations made by the decree-holder ought to have been ascertained by the learned Court below and, for this purpose, it was necessary that the decree-holder be allowed effective opportunity of having his say in the matter and when the decree-holder sought for allowing him to examine the Lat Mandal in order to sustain his grievances, the decree-holder ought to have been allowed to examine the Lat Mandal and adduce such other evidence as might have been relevant in the matter. The fact that the decree-holder had put his signature on the warrant of delivery of possession ought not to have been made the sole basis for rejecting the application of the decree-holder. The present one is, thus, a clear case of refusal to exercise of jurisdiction, which stood vested in the learned Court below, and such an order shall, if allowed to stand good on record, cause serious miscarriage of justice.
13.1 In the result and for the reasons discussed above, this revision succeeds. The impugned order is set aside and the proceedings are remanded to the learned Court below for dealing with the matter in accordance with law.
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