ISLAH UDDIN Vs. DISTRICT JUDGE BULANDSHAHR

JUDGEMENT

(1.) By means of this writ petition, the petitioners have challenged the judgments of the respondent Nos. 1 and 2 dated 21.10.1980 and 8.9.1979 (Annexures-4 and 3 to the writ petition) respectively.

(2.) Suit for specific performance of agreement of sale was filed by the petitioners (Original Suit No. 22 of 1964) against the respondent No. 3 on the basis of agreement dated 20.7.1963. In the plaint, relief of possession was not specifically claimed. The suit, as was filed by the plaintiffs, was decreed by the trial court on 27.5.1971 against which appeal was filed by the defendants which was dismissed on 24.2.1976. Thereafter, a second appeal was filed which was numbered as Second Appeal No. 47 of 1976 in which on 29.4.1976, an interim order was granted in favour of the appellants. In the meantime, in pursuance of the Judgment and decree of the trial court, the petitioners filed execution application (Execution Case No. 30 of 1971) for execution of sale deed and for possession. After objection by the respondent No. 3 under Section 47, C.P.C., raising a point that the petitioners cannot get the possession over the land as there is no decree of possession, the executing court vide its order dated 31.7.1976, repelled the objection of respondent No. 3 and the sale deed was executed in favour of the petitioners and the possession was also given on 3.8.1976 and by the order dated 5.8.1976, execution was directed to be struck off in full satisfaction. When this fact was brought to the notice of second appellate court in Second Appeal No. 47 of 1976 on 15th of July, 1976. stay order was vacated.

(3.) After the execution of decree in favour of the petitioners as stated above, the respondent No. 3 preferred an appeal which was allowed by 3rd Additional District Judge by his order dated 20.5.1978 whereby the learned Judge held that the possession could not be given to the petitioners over the land in dispute unless the decree holder/petitioners get the Judgment and decree amended so as to include a direction for possession. In view of the aforesaid decision of 3rd Addl. District Judge dated 20.5.1978, the petitioners moved an application before the trial court under Sections 151, 152 and 153, C.P.C. for making correction fn the judgment and consequential correction and amendment of the decree. The said Misc. Application was numbered as Misc. Case No. 191 of 1979. The respondent No. 3 filed objection to the said application. The trial court took a view in its order dated 8.9.1979 that it had no jurisdiction to pass any order as the decree of the trial court had merged with that of lower appellate court. Thereafter, the petitioners moved another application under Sections 151, 152 and 153, C.P.C. before the learned District Judge for making necessary correction in the Judgment and decree in Suit No. 22 of 1964. The respondent No. 1 also by his order dated 21.10.1980 rejected the petitioners' application on the ground that the matter is pending in the second appeal before the High Court, therefore, it cannot be done. It is against these two orders passed by the courts below, the petitioners have come up before this Court in this writ petition.