M M JAMADHAR Vs. AMIRBI

JUDGEMENT

(1.) These three revisions by the revision petitioners are directed against the order dated 10-4-1981, passed by the Principal Civil Judge, Belgaum, in Execution Case Number 304 of 1981, allowing I. A. No. 1, thereby directing delivery of actual possession of the property in possession of these revision petitioners, under O.21, R.35(1) of the Civil P. C. (hereinafter referred to as the 'Code').

(2.) The material facts are that one Khutejabi and another Hafizabi, filed Special Suit No. 100 of 1952 in the court of the Civil Judge, Senior Division, at Belgaum, against 23 persons, for partition and possession. The present revision petitioners were defendants Nos. 13, 14 and 15. As can be seen from the copy of the plaint in Special Suit No. 100 of 1952, produced along with the revision petition, it is mentioned by the plaintiffs in para No. 6 that defendants 8 to 19 are tenants and they are made parties to the suit with an intention that while taking the possession of the properties, they should not create any obstacles. The suit was decreed. Regular Appeal No. 196 of 1958, was preferred in this court against the judgment and decree passed in the said suit. Defendants Nos. 13, 14 and 15 (the revision petitioners in these cases) were initially parties to the said regular appeal. On 30-8-1968, a memo was filed in that appeal stating that defendants 13, 14 and 15 be deleted. They were accordingly deleted. It appears that variation of shares was agreed in the said appeal. Accordingly, there was a decree. Thereafter, the present defendant No. 20 along with some others, filed a decree final proceedings in D. F. No. 100 of 1972. Subsequently it was numbered as D. F. 16 of 1978. A Commissioner was appointed in the said decree final proceedings in order to find out whether the properties could be divided by metes and bounds or not. He made a report on 22-3-1972.

(3.) Now, a copy of the application filed by defendant No. 20 for final decree proceedings has been produced. Defendant No. 20 has stated in para No. 4 that the other properties are in possession of various tenants and. opponent No. 3 is recovering the rents from the tenants. The decree final proceedings came to an end. Thereafter, defendants Nos. 18, 20 and 21 sued out execution in No. 304 of 1981, without making the present revision petitioners, as parties to the execution. The decree-holders filed an application I. A. No. 1, requesting for issue of warrant for delivery of actual possession under O.21, R.35(1) of the Code and also filed I. A. No. 2 praying for police protection and I. A. No. 3 for permission to break open the lock, if necessary. The bailiff went to the properties and delivered actual possession of the properties to the decree-holders. It is undisputed that the present revision petitioners who were in possession of the properties involved in these cases, were thrown out by the bailiff from the premises in their possession. The present revision petitioners filed Miscellaneous Cases Nos. 26, 27 and 28 of 1981, under O.21, Rr.99 and 100 of the Code complaining against their dispossession and praying that they should be put back in possession of the property. They have also filed these three revision petitions under sec.115 of the Code, alleging that the executing court had no jurisdiction to issue a warrant under O.21, R.35(1), C.P.C. as the properties in question were in possession of the tenants and at the most, a warrant under O.21, R.36, C.P.C. alone could have been issued by the court below. 3A. It is undisputed that the present revision petitioners have filed Misc. 26, 27 and 28 of 1981, under O.21, Rr.99 and 100, C.P.C., complaining about their dispossession from the properties, by the decree-holders. They have also prayed therein for restoration of the possession to them.