MINOTI MAZUMDAR Vs. TARA CHAND AND ANOTHER

JUDGEMENT

(1.) In execution of a decree dated 7.11.1963 passed in Original Suit No. 299 of 1963 between Tara Chand and B. L. Mitra, the suit property was sold in auction on 17.4.1965. The sale certificate was issued on 23rd August. 1965. The petitioner filed an application under Order XXI, Rule 58 claiming that she was in possession of the disputed house in pursuance of an agreement for sale executed by B. L. Mitra on 3.8.1962, in part performance whereof the possession of the said property was delivered to the petitioner. The said objection was registered as Misc. Case No. 52 of 1965 which was ultimately dismissed on 23rd May, 1965 on merits, whereafter the auction sale was confirmed by issuing sale certificate on 23rd August, 1965. The petitioner filed Original Suit No. 88 of 1965 on 21st September. 1965 which was dismissed on 21.12.1966. First Appeal No. 138 of 1967 preferred against the said decree dated 21.12.1966 was allowed by remanding the case for disposal with the direction for disposal of the substitution application and if the substitution application is allowed, the suit would be decided once again. But ultimately the application for substitution was dismissed, against which a revision was filed and the said revision was also dismissed. Thereafter another revision was filed before this Court which was dismissed by an order dated 16th August, 1979. Thereupon, the respondent No. 1 filed an application under Order XXI, Rule 95 for delivery of possession of the property sold in auction to him. Against the said application, the petitioner filed her objection under Order XXI. Rule 63 opposing the delivery of possession and took several objections. The application filed by respondent No. 1 for delivery of possession was dismissed by an order dated 28.11.1983. against which a revision being Civil Revision 26 of 1984 was moved. By order dated 15th September. 1992 the said revision was allowed and the order dated 28.11.1983 was set aside while directing the Court below to decide the petitioner's application dated 22.4.1966 for deciding the question of delivery of possession. This application was dismissed by the learned executing court by order dated 28.11.1983. Against the said order, a civil revision was filed which was allowed by an order dated 15th September. 1992 setting aside the order dated 28.11.1983. It is this order which has since been challenged in this writ petition.

(2.) It is the contention of the petitioner that since once possession has been delivered though symbolic, no second application for delivery of possession would lie. Learned trial court had found favour with this submission whereas the revisional court had held against the said view and was of the view that second application is maintainable.

(3.) Sri Vishnu Kumar, learned counsel for the respondent No. 1 submits that the revisional court had decided the case correctly and the proposition laid down by it is in accordance with law.