Page No.# 1/5 GAHC010165652023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/237/2023 JAHARUL HAQUE @ JAHARUL ISLAM S/O- LT. SOLOMUDDIN @ SOLIBOR RAHMAN, R/O-RAKHALKILLA, P.S. LAKHIPUR, DIST.- GOALPARA (ASSAM) VERSUS FAZAR ALI S/O- LT. JONAB ALI, R/O- RAKHALKILLA, P.S. LAKHIPUR, DIST- GOALPARA, (ASSAM) Advocate for the Petitioner : MR. M U MAHMUD, MR S ISLAM,MRS. M SAIKIA,MR S H MAHMUD Advocate for the Respondent : MR M RANA, BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN ORDER 04.08 .2025 Heard Mr. M.U. Mahmud, learned counsel for petitioner and also heard Mr. M. Rana, learned counsel for the respondent. 2. This civil revision petition, under Article 227 of the Constitution of India, the Page No.# 2/5 petitioner has challenged the order dated 29.09.2022, passed by the learned Munsiff No.1, Goalpara, ('Executing Court' for short) in Title Execution Case No.3/2015. 3. Mr. Mahmud, learned counsel for the petitioner submits that the petitioner was defendant in Title Suit No.123/2010, filed in the Court of learned Munsiff No.1, Goalpara and he, on receipt of notice from the learned Court had entered appearance before the Court and sought adjournment for filing written statement and the same was granted. But, later on, he did not contest the suit for which, the suit proceeded ex-parte and an ex-parte order and decree was passed on 12.07.2011. Thereafter, the respondent herein put the decree in execution by filing Title Execution Case No.3/2015. Then, the petitioner herein, had filed one petition, under Section 47 of the CPC, on the ground that the suit land has no connection with the land of the petitioner, but in the name of taking possession of the suit land, the decree holder/respondent herein, is trying to dispossess him illegally and therefore, it is contended to dismiss the execution proceeding. 4. The respondent herein had filed written objection in the said petition. Thereafter, vide order dated 24.09.2019, the learned Executing Court had disposed of the petition by appointing a Commission for the purpose of identification of the suit land and fixed the matter on 05.11.2019 and accordingly, the Commission had submitted its report, dated 29.07.2022, whereby, it is stated that no similarity is seen in the boundary of the suit land with that of the petition filed for execution of the decree and thereafter, vide impugned order dated 29.09.2022, the learned Executing Court, after perusing the report of the Commission and also considering the record observed that during the proceeding of the suit, the boundary of the suit land might have been changed and also found that the petitioner had ample opportunity to raise the purported issue at the appropriate stage, but he had taken such step at the belated stage, which only left the Court to believe that the judgment debtor is dilly dallying to delay the execution proceeding and thereafter, directed the decree holder to take necessary step for execution of the writ. 5. Mr. Mahmud, learned counsel for the petitioner further submits that the land of the petitioner is situated at 1 km away from the land of the respondent and despite the Page No.# 3/5 discrepancy of the boundary, the respondent is trying to get the decree executed over the land of the petitioner, which is illegal and arbitrary and as such, it is contended to set aside the impugned order. Mr. Mahmud, learned counsel for the petitioner has referred to a decision of Hon'ble Supreme Court in the case of Hindustan Petroleum Corporation Ltd. v. Ajay Bhatia, reported in (2022) 17 SCC 289. 6. Per contra, Mr. Rana, learned counsel for the respondent submits that though some discrepency is there in the boundary, yet, the Dag number of the decretal land is 254, 255(old)/292, 293(new) and Patta No.94(old)/ 136(new), which is the suit land, being occupied by the petitioner herein, and the same is not situated 1 km away from the decreetal land and that the petitioner did not contest the suit in spite of receipt of notice and filing application for granting time to file written statement. As a result, the ex-parte decree was passed and that the Commission has identified the suit land and submitted its report and thereafter, the learned Executing Court has passed the order dated 29.09.2022 and there is no illegality in the order and therefore, it is contended to dismiss the petition. 7. Having heard the submission of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also perused the impugned order dated 29.09.2022 and also the decision of Hon'ble Supreme Court in the case of Ajay Bhatia (supra). 8. It appears that Order VII Rule 3 of the Code of Civil Procedure mandates that where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. 9. In the instant case, it appears from the plaint that the respondent herein had given the description of the boundary and also the Dag number and Patta number for identification of the suit land. In the case of Ajay Bhatia (supra), Hon'ble Supreme Court has held that in the case of Pratibha Singh v. Shanti Devi Prasad, reported in (2003) 2 SCC 330, it has been held that when a suit for immovable property had Page No.# 4/5 been decreed but the property not definitely identified, the defect in the Court record caused by overlooking of provisions contained in Order VII Rule 3 and Order XX Rule 3 could be cured. The Court, which passed the decree could supply the omission. Alternatively, exact description of the decretal property might be ascertained by the Executing Court, as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47. It is further held that there could be no doubt that a decree should not to the extent practicable be allowed to be defeated. At the same time, a decree can only be executed in respect of the suit property if the suit property is easily identifiable. The extent of the suit property would have to be determined by the Executing Court, as a question relating to execution, discharge or satisfaction of the decree. 10. In the instant case, there is no dispute regarding the Dag number and Patta number of the land. Only there is discrepancy in the description of boundary of the suit property. Now, the question is whether in spite of the discrepancy of the boundary the decretal land is identifiable from the Dag number and Patta number. 11. In this regard, I have carefully gone through the report submitted by the Assistant Settlement Officer, wherein it is stated that no similarity of the boundary is seen. But, the said report is silent as to whether the suit land is identifiable on the basis of the Dag number and Patta number and if the same is identifiable on the basis of the Dag number and Patta number, as provided in Order VII Rule 3 of the Code of Civil Procedure, the same has to be decided by the learned Executing Court as held by Hon'ble Supreme Court in the case of Ajay Bhatia (supra) and if the land is identifiable on the basis of the Dag number and Patta number, the learned Executing Court shall proceed to execute the decree. 12. Accordingly, it is provided that the learned Executing Court shall ascertain as to whether the suit land is identifiable on the basis of the Dag number and Patta number and if the same is identifiable on the basis of the Dag number and Patta number, as provided in Order VII Rule 3 of the Code of Civil Procedure, the learned Executing Court Page No.# 5/5 shall proceed to execute the decree. And in the process, the petitioner herein, shall be afforded an opportunity of being heard. 13. In terms of above, this civil revision petition stands disposed of. 14. The exercise mentioned herein above shall be carried out within a period of 4(four) weeks from the date of receipt of certified copy of this order. The petitioner shall obtain a certified copy of this order and shall place the same before the learned Executing Court for further consideration. JUDGE Comparing Assistant