K. BHAGYAMMA Vs. PARVATHAMMA

JUDGEMENT

(1.) Petitioners were the plaintiffs and respondents were the defendants in O.S.No.38/2006 in the Court of the Additional Civil Judge (Jr.Dn.,) and JMFC at Hosadurga.

(2.) The petitioners filed Ex.Case No.34/2010 on 21.7.2010 for issue of a direction to the judgment debtors 2 to 11, to put them in possession of the suit properties. On 31.1.2011, decree holders filed I.A.No.1 to pass an order for delivery of possession of suit properties in their favour. Judgment debtors filed statement of objections and interalia contended that the Ex.petition having been filed based on a preliminary decree, until a final decree is drawn, the Ex.case is not maintainable. By an order dated 13.1.2012, it was held that rights of the plaintiffs has been completely determined in the suit and that there is nothing left to be decided except putting the decree holders in possession. The contention of judgment debtors that the decree is preliminary in nature was not accepted and as a consequence, it was ordered that, if the decree holders were to take steps, there is no impediment for ordering the removal of the judgment debtors from the property and to put the decree holders in possession of the same. Office was directed to issue delivery warrant, if requisite process fee is paid. Steps having been taken, delivery warrant was issued. The same was returned unexecuted in the first instance, with a shara 'for want of help of decree holders' and in the second instance with a shara 'police help needed'. On 9.3.2012, judgment debtors 2 to 5 submitted that they intend to prefer an appeal against the decree put in execution and sought time. Prayer was not granted. Decree holders filed I.A.No.2 under S.151 CPC for providing police help to execute the decree. I.A.No.3 filed by judgment debtor No.3, for adjournment of the case was dismissed. In view of the shara of the bailiff on the delivery warrant, I.A.No.2 was allowed and the jurisdictional PSI was directed to render necessary assistance to the bailiff in executing the delivery warrant.

(3.) On 11.2.2013 the L.R. of defendant No.9 and defendant No.10 filed R.A.No.19/2013 in the Court of Itinerary Senior Civil Judge at Hosadurga. Along with the appeal, I.A.1 was filed under S.5 of the Limitation Act, to condone the delay of 1208 days in filing the appeal. I.A.2 was filed under Order 41 Rule 5 r/w S.151 CPC to stay the operation of the impugned Judgment and Decree. I.A.3 was filed under O.41 R.27 CPC. The appellate Judge passed an order dated 21.2.2013, the material portion of which reads as follows: