H M DATE Vs. RAMAJI

JUDGEMENT

(1.) The order passed by the Additional Judge Court of Small Causes Nagpur on 17-10-1987 below Exhibit-1 in M.J.C. No. 92/86 rejecting the petitioners application for restitution has been challenged in this revision.

(2.) The facts in this case are admitted. The respondent Ramaji Bind instituted a suit for eviction of the petitioner in the Court of Small Causes at Nagpur. It was Civil Suit No. 1146 of 1983. The suit came to be decreed on 16-10-1984. Civil Revision Application No. 1096 of 1984 was filed against that judgement in this Court and it was dismissed on merits on 15-2-1985. Regular Darkhast No. 817 of 1985. While the Darkhast was pending a pronouncement reported in (1986 Mh.L.J. 882) declaring the notificating issued under Clause 30 of the Rent Control Order and Part III of the said order ultra vires was made. This pronouncement was made on 29-8-1986. In the Darkhast the plaintiff- respondent obtained a warrant of possession from the Court and the property covered by the decree came to be put in possession of the respondent on 8-9-1986. On 12-9-1986 the present petitioner filed M.J.C. No. 92 of 1986 for restoration of possession. The application was styled as one under section 144 of the Code of Civil Procedure. This application was contested and it came to be rejected on hearing both the side on 17-10-1987. It is the order, which has been the subject matter of challenge in this revision.

(3.) The case of the petitioner put forth before the Court in M.J.C. No. 92 of 1986 was that though decree in Civil Suit No. 1146 of 1983 became final after this Court rejected the Revision Application No. 1096 of 1984, the possession was not delivered. Due to the pronouncement of this Court reported in 1986 Mh.L.J. 882, all the decrees for eviction, though final, became vulnerable where possession was not delivered in pursuance thereof. Thus on 8-9-1986 (when the possession was delivered to the respondent through the warrant issued by the Court) the decree in itself became unexecutable. It was the contention raided by the petitioner that the possession came to be delivered to the respondent under an unexecutable decree. He, thereof, applied to the Court for restoration of possession under section 144 of the Code of Civil Procedure. This claim was opposed by the respondent on the ground that the decree had become final and in due execution thereof the possession was delivered. It was also his contention that there was neither any reversal, nor any variance nor any modification in the decree and, therefore, there could be no restitution possible under section 144 of the Code of Civil Procedure. This claim was opposed by the respondent on the ground that the decree had become final and in due execution thereof the possession was delivered. It was also his contention that there was neither any reversal, nor any variance nor any modification in the decree and, therefore there could be no restitution possible under section 144 of the Code of Civil Procedure.