CHANDRAKALABAI W/O BAPURAO SHIRSAT Vs. HABIB KHAN

JUDGEMENT

(1.) Heard finally with consent at admission stage.

(2.) The petitioner is original defendant no.3 in Regular Civil Suit No. 123 of 1978. Respondent no.1 herein had instituted the said suit for declaration and ownership and for recovery of possession. By judgment and decree dated 02.05.1987, the learned Civil Judge, Junior Division, Kaij decreed the suit and thereby declared respondent no.1/original plaintiff as the owner of the suit land Survey No. 290 situated at Waghebabulgaon, Taluka Kaij ad- measuring 9 acres 30 guntha. The trial court has also declared the sale deed dated 02.04.1974 in the name of the defendant executed by one Purushottam Ramrao Kulkarni as benami sale deed and further, in clause (C) of the operative part of the decree, directed that the land be taken back from the possession of the Court and the plaintiff be put in possession of the disputed land with mango trees. Being aggrieved by the said judgment and decree passed by the trial court in the aforesaid Regular Civil Suit, the petitioner herein (original defendant no.3) and original defendant no.2 Bhanudas s/o Dhondiba Morale preferred Regular Civil Appeal No. 162 of 1987 before District Court, Ambajogai. Learned District Judge, Ambajogai, by judgment and order dated 16.07.1991 allowed the appeal, quashed and set aside the judgment and decree passed by the trial court in the aforesaid Regular Civil Suit No. 123 of 1978. Being aggrieved by the same, respondent no.1/original plaintiff preferred Second Appeal No. 370 of 1991 and this Court by judgment and order dated 23.02.2010, dismissed the said Second Appeal. In terms of the judgment and decree passed by the trial court in Regular Civil Suit No. 123 of 1978, particularly clause (C) of the operative part of the decree, respondent Habib Khan (original plaintiff) was put in possession of the disputed land with mango trees. The petitioner/original defendant no.3 in the said suit, in terms of the judgment and order passed by this Court in the aforesaid Second Appeal No. 370 of 1991, and since the said judgment and order passed by this Court attained finality, filed an application for execution of the decree under Order XXI Rule 11 of C.P.C. In fact, the said application for execution of decree is wrongly mentioned as filed under Order XXI Rule 11 of CPC. The same is required to be treated as the application filed under Section 144 (1) of C.P.C. The said application for execution of decree is registered as Regular Darkhast No. 3 of 2011. The petitioner herein filed applications Exhibits 43 and 45 praying therein for issuance of the possession warrant and accordingly, notice came to be issued to the judgment debtor i.e. respondent no.1 herein and he filed his objection and say to Exhibit 43 vide Exhibit 49. Respondent no.1/original plaintiff raised objection to the effect that in favour of the petitioner no specific order has been passed by the Court to put her in possession and as such, the petitioner is not entitled to claim possession of the suit property. Learned Civil Judge, Junior Division, Kaij, by order below Exhibit 1 in Regular Darkhast No. 3 of 2011 dated 04.08.2016, dismissed the said Darkhast with costs. Hence this Writ Petition.

(3.) Learned counsel for the petitioner submits that Section 144 of C.P.C. speaks about restitution. In terms of the provisions of Section 144 (1) of C.P.C., so far as a decree or order is valid or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which pass the decree or order, shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, place the parties in possession which they would have occupied but for such decree. Learned counsel submits that the petitioner has lost her possession due to the decree passed by the trial court which was set aside in the first appeal by the District Court and the said order has also been confirmed in the Second Appeal by this Court. Consequently, even if no order has been specifically passed by the appellate court to put the petitioner in possession of the suit property, in terms of the provisions of Section 144 (1) of C.P.C., the petitioner/original defendant no.3 is entitled for restitution.