BHAGWATI PRASAD HAJELA Vs. BISHAMBHAR NATH SINGH KAPOOR

JUDGEMENT

(1.) THE applicant is a judg ment -debtor and the opposite party is a de cree -holder. The decree -holder had origi nally applied for delivery of possession through an amin. Subsequently when the case was transferred to the Court of Addi tional Civil Judge it was prayed that posses sion be effected through a Commissioner. The Additional Civil Judge granted the prayer and an Advocate Commissioner was appointed to effect delivery of possession. The order was challenged in revision, and it was contended that the executing court was not competent to effect delivery of possession through a Commissioner. Reli ance was placed on Padam Sen v. The State of Uttar Pradesh, AIR 1961 SC 218. The learned Ilnd Additional District Judge dismissed the revision holding that the case referred and relied by the revisionists was distinguishable. Hence this revision.

(2.) THE question involved in this revision is whether delivery of possession could be effected through a Vakil Commis sioner. The learned counsel for the appli cant has contended that the power and jurisdiction of the court to issue commis sion is limited to purposes enumerated in Sections 75 to 78 of C.P.C. His further contention is that Section 141 of the Civil Procedure Code being limited to suits even power to appoint Commissioner given tinder Section 75 and Order 26, C.P.C. will not be available to executing court.

(3.) THE question, therefore, is whe ther irrespective of Section 76 and Order 26, C.P.C. the executing court had jurisdic tion to direct delivery of possession through a Commissioner. Order 21 deals with the procedure for execution of decrees and orders.' Order 21, Rule 35, C.P.C. authorises the Court to deliver possession of immovable property. Sub -clause 3 of Order 21, Rule 35, C.P.C. reads as under: