SALIM SULTAN Vs. THIRD ADDL DISTRICT JUDGE BULANDSHAHR

JUDGEMENT

(1.) RESPONDENT No. 3 Bhola Shankar Garg, instituted a suit No. 313 of 1958 inter alia for possession over a piece of land against one Mohammad Suleman. The suit was decreed ex parte on 21st April, 1965. The ex parte decree was executed by respondent No. 3 and possession was delivered to him in execution of that decree on 2nd June, 1965 and by an order dated 26th July, 1965 the execution was struck off in full satisfaction. An application was made for setting aside the ex parte decree by the defendant which was allowed on 14th Sept. 1965 and the ex parte decree was set aside. Subsequently the suit was contested by the defendant but was again decreed on 17th August, 1971. The appeal filed against that decree was dismissed on 14th August, 1972. A second appeal was thereafter filed in this Court which too was dismissed on 22nd February, 1980. RESPONDENT No. 3 thereafter made an application for execution of the decree dated 27th August, 1971 on 19th August, 1980 giving rise to execution case No. 108 of 1972. It is to be noted that during the Pendency of the suit Mohd. Suleman had died and his legal representatives including the present petitioner were substituted. On receipt of the notice of the execution application the petitioner filed an objection under S. 47 of the Civil P. C. on three grounds : (i) Since Possession had already been delivered to respondent No. 3 on 2nd June, 1965 in execution of the ex parte decree dated 21st April, 1965 and the execution was struck off in full satisfaction on 26th July, 1965, the second application for execution was not maintainable, (ii) Smt. Amna Begum who was one of the daughters of Mohd. Suleman had not been substituted along with his other legal representatives consequent upon his death and, as such, the decree was not executable and (iii) There were certain constructions standing on the land in dispute and since no decree for demolition had either been prayed for or passed, possession over the land in dispute could not be delivered to respondent No. 3.

(2.) AFTER hearing the parties the Munsif dismissed the objection filed by the petitioner on 2nd September, 1980 and repelled his contention in respect of all the three grounds. The petitioner filed a revision against that order before the District Judge which was dismissed by the 3rd Additional District Judge; Bulandshahr, respondent No. 1 on 10th Nov. , 1981, Aggrieved, he has filed this writ petition with a prayer to quash these two orders dated 2nd Sept. , 1981 and 10th Nov. , 1981, copies whereof have been filed as Annexures-4 and 5 to the writ petition. Those very three grounds on which the objection had been filed by the petitioner under S. 47 of the Civil P. C. have been pressed before me.

(3.) COUNSEL for the petitioner also urged that forcible possession had indeed been taken back by the petitioner even before ex parte decree was actually set aside. Nothing, however, on the record has been brought to my notice which may indicate that this was ever the case of the petitioner either before the Munsif or before respondent No. 1. An application has been filed on behalf of the petitioner today along with photostat copy of an objection filed by respondent No. 3 on 3rd Oct. , 1972 in execution case No. 108 of 1972. After referring to the said objection it was urged that a perusal of the said objection indicated that possession had been taken back by the petitioner even before the ex parte decree was set aside. I have carefully gone through the objection and in my opinion there is no such admission by respondent No. 3 in the said objection.