UDAI PAL SINGH Vs. PUSHPA

JUDGEMENT

(1.) Here it is necessary to recount a brief history of the case. The journey of the case began with the institution of suit by the petitioner in the year 1972. It culminated in judgment and decree in the year 2000. The execution application was filed in the year, 2001 but it would appear from the record that the executing court proceeded on erroneous reasoning, thus protracting execution of decree despite lapse of 32 years.

(2.) The dispute in the instant petition relates to House No. 82 (132/17) situated in Teachers' Colony, Bulandshahr. The petitioner who is a retired Government servant from Nagaland, instituted a suit for the relief of possession of the property in dispute and award of Rs. 2, 400 as mesne profits for the period relating to past one year and pendente lite and future mesne profits at the rate of Rs. 200 per month. The suit was founded on the grounds that plaintiff was the real owner of the property and it was purchased for a consideration by the petitioner ; that defendant No. 1 who is the brother of the petitioner to whom he remitted money while in service for purchase, illegally purchased the said property in his name and also inducted defendants 2 and 3 Jai Swarup and Khacheru Singh illegally by letting out the same and hence they were also impleaded in the suit as defendants. Thereafter, defendant No. 1 entered appearance and filed written statement repudiating plaint allegations and claiming his own rights and ownership in the property. In paragraph 12 of the written statement, he has specifically denied the allegation of letting out but in the same breath has stated that Jai Swarup defendant No. 2 was living as guest and defendant No. 3 as licensee for the past some-time. The Suit bearing No. 189 of 1972 was initially dismissed by the trial court but the first appellate court allowed the appeal by means of judgment and decree dated 26.11.1992. The first appellate court passed the decree in the following terms : "The appeal is allowed. Judgment and decree passed by the learned lower court are set aside. Plaintiffs suit for recovery of possession is decreed against the defendants. The defendants are directed to hand over peaceful possession of the property in question to the plaintiff within one month failing which the plaintiff shall be entitled to take possession over the property in question through Court."

(3.) It is obvious from the record that defendant Nos. 2 and 3 did not prefer any second appeal against the aforestated judgment and decree and only Chandra Pal Singh filed second appeal before this Court. The aforesaid second appeal, it would further appear, culminated in dismissal vide judgment and decree dated 7th November, 2000. A review application also came to be dismissed on 20.5.2002. It would appear that soon after dismissal of second appeal, the execution case came to be instituted in the Court of Civil Judge (S.D.), Bulandshahr, which was registered as Execution Case No. 12 of 2001. Objection was filed by Kacheru Singh defendant No. 3 on the ground that decree passed was not executable. The executing court in the ultimate analysis concluded that decree passed against Kacheru Singh for possession cannot be executed. A revision was preferred by the petitioner, which also was dismissed. It is these two orders, which are impugned, in the present petition.