KRISHAN LAL DUTTA Vs. BEHARI LAL CHHABRA

JUDGEMENT

(1.) This civil revision is directed against the orders dated 9th June, 1984 and 10th August, 1984 of Shri A.K. Srivastava, SubJudge, by which he had held that the execution petition moved by the petitioner/decree-holder is inexecutable and the plot in respect of which the decree for possession had been obtained by the petitioner/decree-holder does not exist at the spot and he allowed the objections of the respondent/judgment-debtor holding that the respondent/judgment-debtor is in possession of property A-47 in respect of which the decree-holder cannot get any warrants of possession in execution of the decree obtained by the petitioner/decree- holder against the respondent.

(2.) The facts of the case in brief are that the petitioner/plaintiff had filed a suit under Section 6 of the Specific Relief Act against the respondent/ defendant for getting relief of possession in respect of plot measuring 200 sq. yards bearing No. V/B-64-B in Varinder Nagar bounded on East by service Lane, West by road, North by house No. WZ-213 and South by house No. WZ-218B as shown in the site plan which was filed alongwith the plaint and was exhibited as Ext. P-2 situated in Khasra No. 781. It was averred in the plaint that the plaintiff/petitioner had purchased this plot from Ram Gopal vide Sale Deed dated 7th April, 1970 registered on 13th April, 1970 and the said plot was trespassed into by some other persons and he had filed a suit numbered 492 of 1973 against those persons, namely-Jagan Nath and Goverdhan Dass on 27th August, 1973 and the suit was decreed for possession against those persons on 13th February, 1975 and in execution of the said decree possession was taken and decree was satisfied on 4th January, 1980 and that thereafter the present respondent/defendant had taken illegal possession of the said plot necessitating the filing of the said suit, under Section 6 of the Specific Relief Act.

(3.) The respondent/defendant contested the said suit on various pleas including at the decree obtained against Jagan Nath and Goverdhan Dass was ficticious one and on merits it was pleaded that the respondent/defendant had purchased the plot in question and had taken possession from the vendor. During the pendency of the suit the respondent/defendant moved an application under Order 6 Rule 17 of the Code of Civil Procedure with a view to amend the written statement in order to take the plea that the property in possession of the defendant/respondent bears Municipal No. A-47 but the said application was dismissed. A plea was also taken that suit was not properly valued for purposes of court fee and jurisdiction. Smt. Pratibha Rani, Sub-Judge, held that the suit should be valued for purposes of courtfee and jurisdiction at Rs. 21,000.00 and I am told that the necessary court fee was paid on the said valuation. Thereafter the suit was decreed by Shri V.K. Malhotra, Sub-Judge, in respect of the plot shown in the map, Ext. P-2. The execution application was moved by the petitioner/decree-holder for getting the possession of the said plot. The respondent/judgment-debtor filed objections under Section 47 of the Code of Civil Procedure pleading that the respondent/judgment-debtor is in possession of property bearing No. A-47 and was not liable to be dispossessed from the said property in execution of the decree for possession as the decree for possession did not pertain to the property in possession of the respondent/judgment-debtor. It appears that on 29th May, 1981 the Court recorded the statement of the counsel for the petitioner/decree-holder in which he mentioned that the decree-holder has nothing to do with property No. A-47 and the decree bolder would take possession only of the plot VB-64-B. Then statement of the counsel for the respondent/judgment debtor was also recorded in which he stated that the judgment debtor had no objection to the decree-holder getting possession of plot No.VB-64-B but he went on to state that the judgment debtor is in possession of property No. A-47 having following boundaries : East : Service Lane West : Road North: WZ-213or213-A South : House No. WZ-218-B (A-46) The Court without recording any clarificatory statement of the decree-holder whether the decree-holder is to get possession of the plot bounded as mentioned in the statement of the counsel for the respondent/judgment-debtor proceeded to pass the order that admittedly the judgment-debtor is owner of property A-47 and judgment-debtor has no connection with property VB-64-B and decree-holder has no concern with A-47 so he directed that the decree-holder shall not get possession of A-47 and warrants of possession be issued against property No. VB-64-B.