MOGHIBEN LAKHABHAI Vs. JASHA BHURA & 1

JUDGEMENT

(1.) THE present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the applicants -original plaintiffs to quash and set aside the impugned order passed by the learned executing Court -learned Civil Judge (Junior Division), Malia Hatina below Exh. 1 in Regular Darkast No. 3/2002 dated 26/12/2003 by which the learned executing Court has dismissed the said Darkast application filed by the applicants -original plaintiffs.

(2.) THE facts leading to the present Civil Revision Application in a nutshell are as under;

(3.) SHRI Desai, learned advocate appearing on behalf of the applicants -original plaintiffs -original decree holders has vehemently submitted that the learned executing Court has materially erred in dismissing the Execution Petition on the ground that the decree is not capable of being executed as no decree has been passed to remove the obstruction. It is submitted that the decree passed by the learned trial Court confirmed by this Court was very clear i.e. granting declaration and permanent injunction by which not only declaration was granted in favour of the applicants -original plaintiffs that they have right to use the suit land in question as a way to their field but even granted permanent injunction restraining the original defendants from obstructing the applicants -original plaintiffs from using the suit land as a way to their field and, therefore, it is submitted that anything which would come in the way of the applicants -original plaintiffs for using the suit land as a way to their field it was the duty of the executing Court to remove such an obstruction. It is submitted that by not granting the relief as prayed for, decree, which has been passed in favour of the applicants -original plaintiffs, would become nugatory and/or infructuous. It is submitted that it is the duty of the executing Court to see that the decree is implemented and executed and, therefore, it is requested to allow the present Civil Revision Application.