Pradip Chowdhury & Ors vs Madhabi Chowdhury

Arindam Lodh, J

Heard Mr. D.R.Chowdhury, learned Sr. counsel assisted by Mr. S. Sarkar, learned counsel appearing for the petitioners.

This is an application under Section 227 of the Constitution of India asking the Court to exercise its power of superintendence in the matter of execution proceeding now pending before the learned Civil Judge, Jr. Division, Court No.2, Khowai in Case No. Ex(T)01/2020.

Shortly stated, the petitioners of this petition were originally the defendants of the partition suit instituted by the respondents herein. After the institution of the suit, the petitioners had participated in the proceeding, contested the suit and thereafter, the court after hearing the parties had passed preliminary decree. In pursuance of that preliminary decree, a Survey Commissioner was appointed to partition the suit land if the parties to the suit had failed to arrive at an amicable settlement. Since the parties had failed to arrive at an amicable settlement, the Survey Commissioner was appointed. The entire suit was surveyed in presence of the parties. The Survey Commissioner had submitted his report to the court and the report was accepted. The court after hearing the parties had passed final decree. The Decree Holder, thereafter, filed execution application before the learned trial court for execution of the decree as per the final decree. The petitioners herein had filed objection in the execution proceeding under Section 46 of the Code of Civil Procedure,1908. That objection is still pending in the execution proceeding before the executing court and the next date is fixed on 15.11.2021. In the meantime, the petitioners had filed another application before the executing court praying for restraining the plaintiff-respondents from alienating, transferring and changing the nature and character of the suit land. That injunction petition is also pending before the learned court below and the matter has also been fixed on 15.11.2021.

Mr. Chowdhury, learned Sr. counsel has submitted that along with the injunction petition the petitioners have prayed for a mandatory injunction so that they can bring drinking water from a portion of the suit land under the possession of the plaintiff-respondents.

In this position, in my opinion, it will not be proper for this court to pass any order since all the petitions are pending before the learned court below. However, I have taken note of the submission of Mr. Chowdhury, learned Sr. counsel, that the plaintiff-respondents are not allowing the petitioners to take drinking water from any part of the suit land. Of course, it is a matter of concern. As such, I direct the petitioners to submit a put-up petition tomorrow itself i.e. 08.10.2021 before the learned court below for hearing the injunction petition in which the matter is pending and learned executing court after hearing the petitioners shall pass necessary order in respect of supply of drinking water to the petitioners.

A copy of this order be sent to the concerned learned court below during the course of the day.

Also supply a copy of this order to the learned counsel appearing for the petitioners during the course of the day.

With the aforesaid observations and directions, the instant Civil Revision Petition stands disposed.