Shakuntola Kanoo v. Rajendra Prashad Kanu and 14 Ors

O R D E R

¶1004. 2023 Heard Mr. MJ Quadir, learned counsel for the petitioner. Also heard Mr. SK Ghosh, learned counsel for the respondent Nos. 1 to 7.

¶2The present petition is filed assailing an order dated 03.02.2023 passed by the learned Executing Court in Title Execution Case No. 15/2019.

¶3The respondent Nos. 1 to 7 preferred a suit for declaration of joint title of the plaintiffs and respondents and the partition of the suit for creation of separate saham.

¶4The said suit was decreed by the learned court below by its judgment and decree dated 20.06.2011. Being aggrieved, the present petitioner preferred an appeal, which was registered as TA No. 11/2011. The said appeal was also dismissed by the learned Appellate Court.

¶5Thereafter, the petitioner preferred a second appeal, which was Page No.# 5/6 registered as RSA No. 118/2015. The said second appeal was allowed by this court under its order dated 24.07.2014 by remanding the matter to the learned lower appellate court for a fresh decision of the appeal following the mandate of Order 20 Rule 18 of the CPC.

¶6Subsequently, the Appellate Court by judgment and decree dated

02.06.2017 modified the decree by ascertaining share of each of the plaintiffs and defendants.

¶7Being aggrieved, the petitioner herein preferred yet another second appeal, which was registered as RSA No. 148/2018 before this court. The said appeal was withdrawn on 07.06.2019. Thereafter, the plaintiffs filed the execution case being Title Execution Case No. 15/2019 after passing of the final decree. The present petitioner preferred a petition seeking permission to raise objection in the execution proceeding, which was rejected by the learned court below on the ground that the executing court under its order dated 16.03.2021 proceeded with the execution case under Order 21 Rule 22(a) of the CPC and dispensed with the requirement of issuance of notice as the execution was initiated within two years from passing of final decree. Being aggrieved, the present application is filed.

¶8Mr. Quadir submits that the final decree has been passed without ascertaining the boundaries and that one of the co-sharer has in the meantime expired issueless and therefore redetermination of the share is required.

¶9Considered the argument advanced by the learned counsel for the petitioner. This court is of the opinion that the judgment debtor shall have no right at this stage to raise the issues of the validity of the final decree passed in view of the litigational history as discussed hereinabove. This court is also of the further opinion that the order dated 03.02.2023 does not suffer from any jurisdictional error or such order cannot be said to be irrational or perverse requiring interference of this Court in exercise of power under Article 227 of the Page No.# 6/6 Constitution of India. The order has not also been passed in ignorance of any settled proposition of law or resulted in any miscarriage of justice.

¶10The Hon'ble Apex Court in the case of Kattukandi Edathil Krishnan & Anr vs. Kattukandi Edathil Valsan & Ors reported in 2022 SCC Online SC 737 held that issuing of fresh notices at every stage to the defendants should be avoided. At the same time, as the execution was filed within the period of two years from the date of passing of the final decree, which the respondents were very much well aware of, giving them a chance to file objection at this stage and after attainment of finality of the decree, will be nothing but a futile exercise, which may also result delay in the execution proceeding.

¶11In that view of the matter, this court finds no merit in this revision petition. Accordingly, same stands dismissed. Interim order, if any, stands vacated. JUDGE Comparing Assistant

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