NAFIS AHMAD Vs. ABDUL RAHIM

JUDGEMENT

(1.) THIS is an application in revision u/Sec. 115 of the Code of Civil Procedure on behalf of the decree-holder for setting aside the order of the Additional District Judge allowing the application of the judgment-debtor-opposite party u/Sec. 144 of the C. P. Code and directing the trial court to restore possession of the building as well as goods to the judgment-debtor.

(2.) BRIEFLY, the facts giving rise to this revision are as follows : Nafis Ahmad, decree-holder, filed a suit for recovery of arrears of rent and ejectment from premises no. 123/76-A Noorullah Road, Allahabad, against Abdul Rahim, judgment-debtor, in the court of the Judge, Small Causes. The suit was decreed ex parte against the defendant. The decree-holder put the decree in execution and obtained possession of premises no. 123 Noorullah Road, on 2-6-1975. While delivering possession of the premises a number of goods and articles belonging to the judgment-debtor were placed in the supurdgi of Suresh Kumar. On an application made by the judgment-debtor the exparte decree was set aside by the trial court under Order IX rule 13 on 22-9-1975. Abdul Rahim made an application before the trial court on 7-11-1975 for restitution of his possession. The trial court rejected the application on the ground that it was filed beyond the period of limitation of thirty days as prescribed under Article 128 of the Limitation Act. Abdul Rahim there upon filed revision which was allowed by the Additional District Judge. The lower revisional court held that although the plaintiff's suit was in respect of premises no. 122 Noorullah Road, but in execution proceedings the judgment-debtor was wrongly dispossessed from 123 Noorullah Road. As regards the limitation, the learned Judge held that the judgment-debtor was dispossessed from premises no. 123 due to mistake of the court and since no period of limitation was provided for rectifying the wrong done by the process of the court or its agent, the defendants application for restitution could not be rejected. The learned Judge directed the trial court to restore possession of the premises in dispute to the judgment-debtor and also to restore back immovable property which was in the custody of the supurdar. The learned Judge further issued a direction to issue notice to the supurdar and also to decree-holder to show cause why they should not be prosecuted for disobedience of the court's order as they were not returning the goods of the applicant-judgment debtor. Aggrieved Nafis Ahmad decree-holder has approached this court by means of this application in revision.

(3.) LEARNED counsel then urged that if the judgment-debtor was dispossessed from the premises 123 Noorullah Road he could not regain possession as in his application he had mentioned premises No. 122. I find no merit in the contention. There is no dispute between the parties that the judgment debtor was dispossessed from same premises which was let out to him by the decree-holder. If that be so, any clerical error in mentioning the wrong number of the premises could not be a valid ground for rejecting the judgment-debtor's application. The judgment debtor is entitled to regain possession of the property from which he was dispossessed as well as the goods which were taken into custody and placed under the custody of Suresh Kumar supurdar.