GOPALAN VIJAYAN Vs. RAVEENDRAN

JUDGEMENT

(1.) Revision petitioner is the assignee of the decree holder. First respondent is the judgment debtor and second respondent is the decree holder.

(2.) Decree holder instituted a suit for recovery of shop rooms with arrears of rent. The suit was decreed. An E.P. was filed and it was posted for hearing to 1-11-1975 and for delivery to 3-11-1975. According to the revision petitioner without filing objection to the E.P. in response to the notice 1st respondent preferred A.S.No.289 of 1975 against the decree and obtained interim stay of execution. The said appeal was dismissed on 15-3-1976 giving two months time to surrender the shop rooms. But the 1st respondent did not surrender the rooms within the said time. The E.P. stood posted to 4-9-1976. Second respondent produced copy of the decree in AS.No.289 of 1975. The E.P. was adjourned for stay report to 4-12-1976. Second respondent filed a petition on 6-10-1976 for advancing the posting of the E.P. contending that the stay is no longer in force. Copy of the petition was directed to be served on the first respondent. The posting of the E.P. was advanced to 18-10-1976 for objection, if any, and for delivery to 19-10-1976. Since on 18-10-1976 the first respondent/judgment debtor did not appear, delivery was ordered on 19-10-1976 and accordingly delivery was effected on 19-10-1976. First respondent thereupon filed E.A.No.828 of 1976 for redelivery and other reliefs wherein he impleaded the revision petitioner, the assignee of the 1st respondent as additional decree holder. He questioned the delivery on the ground that the posting of E.P. was advanced without notice to him, that the delivery was taken behind his back, and that the movables and valuables were removed on account which he sustained loss and injury.

(3.) Trial Court dismissed the said petition. First respondent preferred C.R.P.No.3016 of 1982 against the order dismissing the E.A for redelivery. This court by order dated 3-10-1988 set aside the order of the lower court and remitted the matter for fresh disposal. Thereafter, the execution court passed the impugned order whereby the execution court directed redelivery of the decree schedule shop rooms to the first respondent by way of restitution without prejudice to the right of the decree holder to obtain delivery of the decree schedule building 'in the presence of the judgment debtor through this court'': It was also directed in the said order that the question regarding the realisation of the arrears of rent and other connected matters would be considered later. This order is under challenge.