S.N. Mallick, J.
1. The instant revislonal application under Article 227 of the Constitution of india has been preferred by the Judgment debtor petitioner against the order dated 27.7.93 passed by the learned Additional District Judge. First Court, Nadia, in Civil Revision Case No. 1 of 1992 under section 115A of the Civil Procedure Code affirming the order No. 175 dated 14.12.91 passed by the learned Munsif Kalyani, Nadia in Misc. Judicial case No. 69 of 1991 under section 47 of the Civil Procedure Code arising out of Title Execution case No. 17 of 1987. The learned Munsif by his order dated 14.12.91 held that the aforesaid Misc. case brought by the present petitioner Judgment debtor is barred by limitation and that the same is also barred by the principles of res judlcata under section 11 of the Civil Procedure Code. The learned Additional District Judge has affirmed both the above findings of the executing court under the impugned order.
2. At the beginning it must be borne in mind that the scope of the present application under Article 227 of the Constitution of india is very limited. In other words, this High Court in such matters cannot apply the principles of section 115 of Civil Procedure Code. It is well settled in law that the power of the High Court under Article 227 would not be exercised by it to substitutes its own Judgment whether on a question of fact or of law in place of the sub-ordlnate courts or to correct an error not being an error of law apparent on the face of the record. It has been held by the Supreme Court in Duruifala v, Bhatena's case reported in AIR 1991, S.C page 1494 that in the exercise of Jurisdiction under Article 227, the High Court can set aside or ignore the findings of fact of an inferior court or tribunal if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the court or Tribunal has come to. or. In other words,it is a finding which was perverse in law. Except to this limited extent, the High Court has no Jurisdiction to interfere with the findings of fact. The High Court will certainly interfere under Article 227 in respect of an order passed by the sub-ordlnate revisional court when there is error of law apparent on the fact of the record, arbitrary or capricious exercise of authority, or discretion or when the sub-ordlnate court has arrived at a finding which is perverse or based on no material or when the Impugned order results in manifests injustice. Such a power under Article 227 may be exercised by the High Court also suo motu. In a case reported in 1989 (2) CHN page 338 (Paltu Dutta v. Smt. Nlbedlta Roy) it has been held by this High Court that in the matter of an order passed by the sub-ordlnate Revisional court under section 115A Civil Procedure Code the High Court in its revisional power under Article 227 of the Constitution of india will only interfere in the case of manifestly gross injustice or abused of the process of the court or similar other extraordinary situation and that such a power is to be exercised only in rarest of rare case.
3. Before considering the impugned order in the light of the above principles of law has laid down by the apex court and by our High Court it would be helpful to refer to the following undisputed facts on record.
4. The OP decree holder filed Tile Suit No. 132 of 1972 in the court of the learned Munslf. Ranaghat for a declaration of his title to C.S. plot No. 120, Khatlan No. 16, Mouza Lalpur with a further declaration of his right of way through the contiguous C.S. plot No. 562 belonging to the defendant No. 7, Zilltapartsad Nadia and also for mandatory injunction against the defendant Nos. 1 to 6 directing them to remove the constructions raised over the said pathway obstructing the plaintiffs egress and ingress from and to his own land. During the pendency of the said suit the defendant No. 1 Gourhari Dutta died leaving his widow Smt. Maya Rani Dutta and others who ware duly substituted and brought on record. The said suit was contested only by defendant No. 7 the Zlll apart sad which admittedly the claim of the plaintiff and challenge the right of the defendants 1 to 6 to have any constructions on C.S. plot No. 562. Maya Rani filed a written statement but did not contest the suit. No other defendants also contested the same. The suit was decreed on 17.7.75 by the trial court on contest against the defendant No. 7 and exparte against the rest. The defendants 1 to 6 were directed to remove the constructions standing on C.S. plot No. 562 within a time specified in the decree. As the structures were not removed, the OP decree holder filed the Title Execution Case No. 47 of 1975 in the court of the learned Munsif, Ranaghat on 26.11.75. In the aforesaid execution case the said Mayaranl entered appearance and prayed for time to file objection on the found that probate was required to be obtained in respect of the will left by her husband Gourhari. The objections filed by other Judgment debtors were rejected by the Executing Court. After obtaining probate the said Mayarani sold away to the present petitioner and three others the R.S. plot No. 562 of 1779 by registered Kobala dated 25.10.78. The aforesaidexecution case was subsequently transferred to the 2nd Court of the learned Munsif, Ranaghat on 8.2.80 being renumbered there as title execution case No. 13 of 1980 which again was transferred to the court of the learned Munsif, Kalyani on 15.5.87 being renumbered as title Execution case No 17 of 1987. The said executing court issued the writ of delivery of possession but the Nazlr without executing the writ Hied a report on 5.7.87 in respect of which the OP decree holder submitted a written objection. By order dated 23.2.88 the executing court held inter alla that the disputed shop fall within the decretal land (by the annexure 'A' to the revlslonal application). The present petitioner i.e. the transferee from Hayarani during the pendancy of the execution proceeding filed a suit being T.S. No. 74 of 1988 for a declaration of his interest in respect of the R.S. plot No.562 of 1779 in execution of the decree obtained by him in T.S. No. 132 of 1972 in respect of C.S. plot No. 562 alleging that the aforesaid R.S. plot No. was not a part and parcel of the above decretal C.S. plot No. 562. In the said subsequent suit the present petitioner filed an application for temporary injunction which was finally disposed of by this High Court on 22.6.89 in C.O. No 1629 of 1989. The copy of the said order is to be found at annexure 'B' of the revlslonal application. It would be helpful to quote the relevant part of the said order below:-
'If the suit property viz., R.S. plot No. 562/of 1779 of R.S. Khatian No. 1448 involved in T.S. 74 of 1988 forms part of the decretal land in Title Suit No. 132 of 1972 in respect of which the petitioner has levied an execution case No. 17 of 1987, then the petitioner can not execute the decree to dispossess the opposite party from R.S. plot No. 562/1779. If it is otherwise i.e. If suit plot R.S. plot No. 562/1779 forms part of the decretal land the decree is executable as against the opposite party as well. So the petitioner is injuncted from proceeding with Title Execution case No. 17 of 1987 to dispossess the opposite party from suit plot viz. R.S. plot 562/1779 if it does not form part of the decretal land in Title suit No. 132 of 72. This order shall not, however, restrain him from proceeding with the executing case provided R.S. plot No 562/1779 form part of the decretal land in Title suit No. 132 of 72'.
On receipt of the above order the Executing Court without, however, taking resort to local investigation for the purpose of ascertaining whether the R.S. plot No. 562/1779 is a part and parcel of the C.S. plot No. 562 held by its order No. 152 dated 3.11.89 that R.S. plot No. 562/1779 form part of the decretal land.
5. In the aforesaid Misc. case under section 47 of the Civil Procedure Code brought by the present petitioner the same dispute was raised and the OP decree holder contested the same on the ground that frivolous objections were being raised to frustrate the decree obtained by him in the earlier suit. I have already noted that the Executing Court by its order dated 14.12.91 dismissed the Misc. case under section 47 on the grounds that it was barred by limitation and was hit by the principles of res Judicata. The sub-ordinate Revlsional Court by the Impugned order affirmed the findings of the Executing Court.
6. It has been contended by Mr. Bhattacharjee the learned counsel appearing for the petitioner that both the findings of the Executing Court and of the sub-ordinate Revisional Court on the points that the Misc. case under section 47 is barred by limitation and by res judicata are grossly bad in law. Let me first take up the point of res Judicata. In order to come to a finding of res judicata the learned Munsif has referred to the order passed by his predecessor-in-office being No. 123 dated 23.2.88 and the order No. 152, 3.1.89. I have already noted the contends of the order dated 23.2.88. The said order was passed ex parte by the learned Munsif on the basis of the Nazir's report and on the basis of the decree holder's objection to the said report. It has been noted there that the petitioner Judgment debtor has not filed any objection under section 47 till that date i.e. 23.2.88. In the said order the learned Munsif did not come to any finding whether the R.S. plot No. 562/1779 appertains to the decretal C.S. plot No. 562 or not by ordering any local investigation to be done by a survey passed Pleader Commissioner. It was simply held that as the petitioner was claiming his title to the disputed plot through the original Judgment debtor Mayarani is bound by the decree and has no right to resist the execution of the writ of delivery of possession in respect of C.S. plot No. 562. This order was, however, passed before this High Court passed the order dated 22.6.89 in C.O. No. 1629 of 1989 already quoted above. The order No. 152 dated 3.11.89 reveals that even after the receipt of the High Court's order the trial court did not take any step in the matter of directing any of the parties to pray for local investigation for ascertaining whether the decretal C.S. plot No. 562 is covered by the R.S. plot No. 562/1779. The order may be quoted below:--
'The decree holder flies Hazira. Heard the learned lawyer for the decree holder. Seeing the order of the Hon'ble High Court which was received on 23.9.89. Peruse the entire record. I am satisfied that R.S. plot No. 562/1779 forms part of decretal land in Title Suit No. 132 of 1972'.
Mr. Bhattacharjee has rightly submitted that this is sheer travesty of Justice and non-application of Judicial mind in that matter of compliance of the High Court's order dated 22.6.89. It would not be improper to say that by passing this order the learned Munsif almost refused to exercise his Jurisdiction which he should have exercised in terms of the aforesaid High Court's order. The present petitioner was not heard at the time of passing the order dated 3.11.89. The Lower Court Records do not disclose or display any material on the basis of which the learned Munsif could come to the conclusion that the R.S. plot No. 562/1779 is a part and parcel of the decretal C.S. plot No. 562. Mr. Roychowdhury the learned counsel appearing for the OP decree holder has contended that such a finding of the Executing Court affirmed by the sub-ordinate Revisional Court is a finding of fact and as such it cannot be challenged or reopened before this High Court under Article 227, however, erroneous the said finding may be. I am unable to accept such contention which, however, rich in principle cannot be applied circumstances of the presentcase. The above finding of fact arrived at by the Executing Court under its order dated 23.2.88 and 3.11.89 is wholly unjust, arbitrary and perverse being based on no material. Both the orders were passed behind the back of the present petitioner without giving him any opportunity of hearing resulting in manifest injustice. Furthermore it is shocking to see that even after the receipt of the High Court's order dated 22.6.89 the learned Munsif without giving any directions for local investigation took up the responsibility on his own shoulder and came to a finding by passing an order dated 3.11.89 which he was not competent to do. Local investigation in the matter of a land dispute where the question is whether a piece or plot of land appertains to another piece or plot of land recorded in the settlement Khatian is a technical works to be done by a competent person having knowledge and qualification of survey. There cannot be any visual conclusion in such disputes. The learned Munsif in his order dated 14.12.91 has wrongly held that the aforesaid two orders would operate as res Judicata in the instant Misc. case against the present petitioner. Mr. Roychowdhury has contended that a prayer for local investigation was made by the OP decree holder which being resisted by the Judgment was rejected by the Executing court. But admittedly such application was filed by the decree holder before the above order of the High Court was passed. Furthermore, rejection of such application by the Executing Court does not decide that issue at all i.e. whether the R.S. plot No. 562/1779 is a part and parcel of the decretal C.S. plot No. 562. There cannot be any lawful excuse for the Executing Court for not giving necessary directions upon the parties in the matter of having a local investigation in the light of the observations of this High Court. The learned sub-ordinate Revisional Court in the impugned order has not al all considered this aspect of the matter and has mechanically affirmed the finding of the Executing Court on the point of res Judicata. Undisputedly, in the petitioner's Kobala from Mayarani the transferred land is R.S. plot No. 562/1779. In the Title Execution application the decretal plot is shown as C.S. plot No. 562. It is not described by R.S. plot. It is quite amusing to note the finding of the sub-ordlnate Revislonal Court that it is a common knowledge that R.S. plot No. 562/1779 has been carved out of the mother plot being C.S. plot No. 562. The Revisional Court without taking into consideration the position of record that the order dated 23.2.88 and 3.11.89 were passed by the learned Munsif most arbitrarily being based on no material observed that the said findings good, bad or indifferent will operate as res Judicata against the present petitioner. He has failed to notice that there has not been any formal adjudication of the matter. The above two orders were passed by the Executing Court in the same proceeding by the Executing Court although at an earlier stage, before the order dated 14.12.91 was passed. The said orders are not directly the subject matter of the present application but the Impugned order passed by the trial court on 14.12.91 is a culmination of its earlier two orders and as such this court while exercising its Jurisdiction under Article 227 can suo motu look into the property and legality of the said two orders. Accordingly, I am of the view that both the courts below have come to an arbitrary finding that the present Execution case brought by the petitioner is hit by the principles of res judicata which cannot be allowed to stand.
7. Now, I come to the point of limitation. Undtsputedly the period of limitation for filing a Misc. Judicial case under section 47 of the Civil Procedure Code has been provided under Article 137 of the Limitation Act. 1963 corresponding to Article 181 of the old Act. Article 137 says that for any other application for which no period of limitation is provided elsewhere in the Act the limitation is three years from the date when the right to apply accrues. The OP decree holder filed the Title Execution case being No. 17 of 1987 originally on 26.11.75. The petitioner filed the Misc. case under section 47 of the Civil Procedure Code on 17.9.91 raising the dispute that the R.S. plot No. 562/1779 is not the subject matter of the impugned decree in respect of C.S. plot No. 562 and that the petitioner's shop is situated on plot No. 562/1779. In the aforesaid Misc. case he has also referred to the order of the High Court dated 22.6.89. It is further asserted there that unless it is found that the petitioner's shop is on plot No. 562 and not on R.S. plot No. 562 of 1779 the decree cannot be executed. The objection taken by the petitioner is that unless such dispute is determined by survey passed Lawyer the decree cannot be executed. Be that as it may, the Executing Court by its order dated 14.12.91 has held that the instant application has been filed much after the lapse of three years as provided under Article 137. The relevant part of the Executing Court's order may be quoted below:--
'From the materials on this record, it appears that these petitioners appeared to object in this Execution case since long before than three years. But during their such objections they did not file any petition under section 47 C.P.C. When the statute itself codify the time limit for filing such petition, I am nothing to allow the petitioners to file such petition, even after the expiry of that time'.
The sub-ordinate Revisional Court's finding on the point of limitation may also be quoted below:--
'The objection of the present Revisional applicant is that plot No. 562/ 1779 which has been recorded in R.S. Khatian 1448 of Mouza laipur in the name of Gourhari is a different plot from the decretal plot No. 562 and as such the decree is not executable. As observed earlier, since such an objection was available to Mayaranl herself and she having not filed such an objection within three years from the date of her appearance the present revisional applicant who is a subsequent transferee during the pendency of the executing proceeding cannot be heard on that point and such an objection must be turned down being barred by limitation under Article 137 of the Limitation Act'.
Both the findings of the courts below are absolutely unfounded or baseless. Admittedly, the presen petitioner purchased the R.S. plot No. 562 of 1779 on 25.10.78 from Mayaranl one of the Judgment debtors. The records do not show that any notice was served upon the present petitioner of the execution application filed by the Judgment debtor on 26.11.75. There was, however, no question of giving him a notice.Furthermore, on the face of the record the petitioner is not claiming any title to the C.S. plot No. 562 through the original Judgment debtor Mayarani. He lays his claim upon the R.S. plot No. 562/1779 which prlma facie is not the decretal property. Mr. Bhattacharjee the learned counsel appearing for the petitioner has rightly argued that the petitioner's right to apply under section 47 CPC accrued not from the date of filing the original Execution case or from the date of notice served upon Mayarani but from the date when his possession in respect of R.S. Plot No. 562 of 1779 was threatened by the decree holder by praying for excessive execution. Furthermore, the application under section 47 was filed on 17.9.91 on the basis of the High Court's order dated 22.6.89. Under such circumstances the question of limitation loses all significance and technically it must be held that the application under section 47 was filed and within the period of limitation under Article 137 of the Limitation Act. The findings of both the courts below on the point of limitation are arbitrary and unjust.
8. In view of the above facts and circumstances on record and the provisions of law in this regard as discussed above I am of the view that the instant application must succeed for being a rearest of the rare case where the High Court shall interfere with a Revislonal order passed by the sub-ordinate court in exercise of its power under Article 227 of the Constitution of India. The revisional application succeeds. The impugned order is set aside along with the Executing Court's orders dated 23.2.88 and 3.11.89. The Executing Court is directed to re-hear the Misc. case No. 69 of 1991 afresh after giving both the parties an opportunity of hearing according to law in the light of the defections given by this High Court by its order dated 22.6.89 passed in C.O, No. 1629 of 1989. The learned Munsif is directed to dispose of the said Misc. case within three months from the date of communication of this order without giving any unnecessary adjournment to any of the parties on any ground whatsoever. The learned Munsif is further directed to pass necessary orders in the matter of local investigation as indicated in the application under section 47 of the Civil Procedure Code within a fortnight from the date of communication of this order. A copy of this order along with the Lower Court's Record be sent down to the Executing Court by a special messenger at the cost of the petitioner and such cost to be deposited within a week.
9. Application succeeds.