CHIRANJI LAL Vs. BHIKO

JUDGEMENT

(1.) This is a puzzling little case in which I must confess my mind has fluctuated some-what and therefore although counsel's arguments were heard by me as far back as January 16, 1969, I took time to pronounce judgment. The facts are not many and are also not in dispute.

(2.) One Ram Nath obtained a money decree against Dalip Singh and in execution of the decree the property in dispute was put to sale by court auction and was purchased by one Babu Ram on 21-4-1953. The sale certificate was issued on 15-6-1953 and about a week later the auction purchaser sold .the property by a registered deed of sale to one Chiranji Lal. The latter applied to the executing court for delivery of possession and succeeded in obtaining possession of the upper floor of the property on 24-11-1955. Thereafter Smt. Bhiko mother of the original judgment-debtor Dalip Singh moved an application before the executing Court under Order 21 rule 100 of the Code of Civil Procedure for possession being restored to her of that portion of the property from Chiranji Lal. She claimed that she had a right of residence in the property till her death and referred to the sale certificate in which her right had been specifically recognised and mentioned. Her application was accepted by the executing court and restoration of possession to her was ordered Chirai Lal thereupon instituted a suit under Order 21 rule 103 Civil Procedure Code for a declaration to the effect that Shrimati Bhiko had no right to ask for restoration of possession. The suit was however dismissed on 20-8-1956 and an appeal filed against the trial Court's decision was also dismissed on 9-12-1958. In the appeal Chiranji Lal had further sought to urge that in any event the right of residence vested in Shrimati Bhiko did not extend to the entire house and that in fairness such accommodation as might be considered appropriate for her residence be allowed to her.

(3.) Chiranji Lal nevertheless continued to remain in possession of the entire property in spite of dismissal of his suit and appeal; as no action was thereafter taken by Shrimati Bhiko till 1964 to obtain back possession which had been allowed to' her by the executing Court on 7-7-1956. In 1964 she moved an application for execution in the Court of Shri R. K. Singhal, Subordinate Judge Delhi but the same was withdrawn by her on 29-4-1966 for presentation to the proper court. Ultimately on 1-5-1966 she moved another application before Miss S. Mehta, Commercial: