BAYAKODAN VEETTIL MADHAVI Vs. BABU

JUDGEMENT

(1.) THE petitioner is the decree holder in O.S.No.199 of 1997 on the file of the court of the Munsiff of Hosdurg. THE decree is for recovery of possession and for permanent injunction. THE decree was passed on 25.6.2001. THE decree of the trial court was confirmed by the appellate court.

(2.) THE petitioner filed E.P.No.106 of 2007 to execute the decree. THE executing court overruled the objections raised by the respondent and delivery was ordered to be effected. THE Amin delivered the property on 29.9.2007 with police aid. E.P. was closed recording satisfaction of the decree.

(3.) IN paragraph 5 of the Original Petition, the petitioner stated the following : "As may be seen from the order sheet, the executing court issued notice to the respondent. After repeated steps notice was served and since there was appearance respondent was set ex parte and matter was posted for the evidence of the petitioner on 19.2.2010. On 7.4.2010, petitioner was examined as PW1 and Exhibits A1, A2 and A3 series were marked. After closing the evidence, the executing court posted the case for hearing on 21.5.2010. On that day petitioner was heard and it was adjourned for orders on 21.5.2010. On that day petitioner was heard and it was adjourned for orders on 15.6.2010. On 15.6.2010, the court suo motu reopened the matter for no reason whatsoever and posted the matter for steps on 23.6.2010 directing petitioner to take out Advocate Commissioner. Petitioner obliged to the same and filed application for appointment of commissioner to report about the violation of injunction already stated. Commissioner thereafter filed his report and sketch stating that the respondent is occupying the shed in the property. The court below accepted the report and sketch as Exhibits C1 and C2 and posted the case for orders on 22.9.2010. On 22.9.2010, the court below again reopened the case and posted for further hearing to 25.9.2010 and adjourned the hearing to 27.9.2010, 28.9.2010, and finally to 29.9.2010. On that date the matter was again heard and adjourned the Execution Petition for orders on 4.10.2010. On that date the matter was again reopened for the reason that a Second Appeal is pending before this Hon'ble court and it was called on 8.10.2010. Petitioner filed an affidavit stating that there is no order in R.S.A.No.48/08 to stop the execution. A true copy of the said affidavit is produced and marked as Exhibit P4. However, the executing court although informed of the correct position regarding the Second Appeal pending before this Hon'ble Court failed to pass final orders in the Execution Petition."