Judgment:
A.S. Naidu, J.
1. The decree passed by learned Civil Judge (Junior Division), 2nd Court, Cuttack, in T.S. No. 121 of 1970/1417 75) as long back as in the year 1979 is sought to be executed in Execution Case No. 35/1979. In the said Execution Case a petition was filed by the petitioner under Section 47 of the Code of Civil Procedure which was registered as Misc. Case No. 44/2006. Among other grounds the main contention of the petitioner is that the land is a part of the subject matter of the decree and the same being unidentified, the decree cannot be executed. It appears that the decree passed in T.S. No. 141/1975 came before this Court in S.A. No. 84/1993. This Court has confirmed that decree holding as follows:
The learned Counsel for the appellants first contended that the property was not identifiable and, therefore, no decree could be passed in respect of the property, which is not identifiable. This argument of the learned Counsel for the appellants relates to the 3rd substantial question of law on which the appeal was admitted. In this connection, it is necessary to refer to the finding of the trial Court. It is found from the trial Court judgment that a survey knowing commissioner was deputed to visit the spot, measure the land and prepare a field book. The survey knowing commissioner after visit to the spot prepared the report, which has been exhibited as Ext. 1. In Paragraphs 7 and 8 of the judgment, the trial Court has taken into consideration the evidence available on record as well as the report of the survey knowing commissioner to come to a conclusion that the plaintiff is the owner of 'B' schedule property. In the report, the commissioner has indicated the land purchased by the plaintiff as well as the land, on which the defendant-appellants are alleged to have encroached upon. He has shown in yellow colour the disputed part of the land, which encroached upon by the defendant-appellants. The said report was accepted by the Court on 9.8.1978. The order of the trial Court accepting the survey knowing commissioner report was never challenged by the defendant-appellants. Moreover, on perusal of the report, it also appears that with reference to the same the encroached part can be identified. Apart from that, there is evidence available on record so far as identity of the disputed part of the plaintiff plot is concerned and, therefore, I am of the view that as both the Courts had no difficulty to identify the disputed part of the plot belonging to the plaintiff, there is hardly any scope for this Court to interfere with the concurrent findings of fact.
2. This Court in the said Second Appeal found that there was no difficulty to identify the disputed part of the plot belonging to the plaintiff of the said suit and there was hardly any scope to interfere with the concurrent finding of facts. The Executing Court also after referring to the aforesaid judgment vis-a-vis the report by the Commissioner arrived at a conclusion that the suit land as described in the body of the decree was quite identifiable and no hindrance would be caused in effecting delivery of possession thereof the same to the decree holder.
3. In that view of the matter, this Court is not inclined to interfere with the impugned order. That apart it appears that the judgment-debtor to somehow or other tries to stall over the decree which was passed as long back as in the year 1979 and confirmed by this Court. Admittedly the duty of the Court is to see the person in whose favour the decree has been passed should not be prevented from enjoying the fruits of the decree. Frivolous petitions were filed in order to frustrate the decree. The Writ Petition is accordingly disposed of directing the Executing Court to execute the decree as expeditiously as possible.