SARUP SINGH Vs. DARYODHAN SINGH

JUDGEMENT

(1.) B.C. Misra, J.-This revision petition has been filed under section 115 of the Code of Civil Procedure by the defendent judgement debtor and is directed against the order of the subordinate Judge. 1st Class, Delhi dated 24th October, 1969, by which the learned Judge has ordered the issue of a warrant of delivery of possession of immovable property in execution of a decree for mandatory injunction. The question raised in the revision is whether the issue of such a warrant in the circumstances of the case is within the jurisdiction of the Court and this question was considered of sufficient importance by one of us and has been referred to the Full Bench for decision.

(2.) The material facts of the case are that the respondent is the landlord (though not the owner) of the piece of land in dispute situated at Jhandawalan, Pahargunj, Delhi where a workshop containing a motor machinery with electic power owned by the respondent have been installed. It appears that the respondent gave a license to the petitioner to use the said workshop for a consideration of Rs. 600.00 which was subsequently revoked. On 6th September, 1957, the respondent filed a suit against the petitioner for a mandatory injunction directing the petitioner to vacate and quit the workshop in dispute. The suit was decreed by the trial court on 15th May, 1968 and the decree passed has become final as the first .appeal against the same was dismissed by the Senior Subordinate Judge and the second appeal was dismissed by the High Court on 15th May, 1969.

(3.) After the passing of the decree the respondent look out execution and in pursuance of the same, the petitioner-judgement debtor was committed to civil prison for a period of seven days, but the decree has remained unsatisfied. Thereafter the respondent on 7th November, 1968, moved an application which has given rise to the present revision and prayed that a warrant for delivery of possession of the workshop in dispute to the respondent decree holder be issued under Rule 35 of Order XXI read with clause (5) of Rule 32 of Order XXI and section 151 of the Code of Civil Procedure. The execution court, by the impugned order, ordered the issue of the warrant, aggrieved by which the judgement debtor-petitioner has filed the revision.