BINA HARILAL LUHAR Vs. SONI DHANKUVARBEN JAYRAM

JUDGEMENT

(1.) The petitioner-original obstructor challenges by this civil revision application under section 115 of the Code of Civil Procedure, 1908, the order dated 24.2.98 of the Civil Judge, (S.D.), Jamnagar, below ex.17 in Execution Petition No.24/85 and also the order dated 2.5.98 passed by Extra Assistant Judge, Jamnagar, dismissing the Misc. Civil Appeal No.18 of 1998. Under the first order, the learned Executing Court rejected the objection of the obstructor against the execution of decree and under the second order, the appellate Court confirmed that order in appeal.

(2.) The facts of the case in brief are that the obstructor-petitioner-Bina Harilal Luhar is daughter of late Harilal D Luhar. Shri Harilal Luhar admittedly expired in the year 1981. The respondent No.2-Shantaben Harilal Luhar, is widow of late Harilal Luhar. The decree-holder Soni Dhankuvarben Jayram filed a suit for possession of disputed property against the judgment-debtor defendant-respondent No.2. She has come up with the case that Harilal D Luhar was a tenant inducted by the mortgagee and as mortgage has been redeemed, he has no right to continue in possession and further he has no protection of the Rent Control Act. That suit has been contested by the judgment-debtor defendant-respondent No.2. The suit being Regular Civil Suit No.153 of 1983 came to be decreed against the judgment-debtor defendant-respondent No.2 by the trial Court on 17th December 1984. The decree-holder plaintiff-respondent No.1 herein filed the execution petition for execution of the said decree in Executing Court which was registered as Execution Petition No.24 of 1985. However, as the decree of the trial Court has been stayed in Regular Civil Appeal No.42 of 1985, filed by the respondent No.2, the decree of the learned trial Court could not be executed. This Regular Civil appeal came to be rejected by the first appellate Court on 1.10.96. The respondent No.2 has not felt contended by the judgment of the first appellate Court and he has taken up the matter in the Second Appeal No.72 of 1997 before this Court which was dismissed by this Court on 8.3.97. So the decree of possession granted by the learned trial Court against the defendant-respondent No.2 has attained finality. The first innings was completed but as usual as it happens, and as what is has been said in the 1930s by the Privy Council, real trouble of the decree-holder starts when he puts the decree in execution. None other than the daughter of the defendant-respondent No.2 has come as obstructor to this decree, and she filed objection that in this decree she cannot be dispossessed as she was one of the co-tenant in the suit property and as the decree is not against her she cannot be dispossessed. These objections of this lady were not found favour with the Executing Court and as the same were rejected she preferred appeal which has also been rejected and she therefore came before this Court by way of this civil revision application.

(3.) The learned counsel for the petitioner-obstructor, relying on the decision of this Court in the case reported in 38(3) GLR 2103 and of the Apex Court in the case reported in 1991(2) RCJ 718, contended that this decree which has been passed only against her mother is not executable against her.