LAWS(APH)-2011-8-108

IBRAHIM Vs. S K WASIM AHMED

Decided On August 26, 2011
IBRAHIM Appellant
V/S
S.K.WASIM AHMED Respondents

JUDGEMENT

(1.) THE petitioners in the revision as well as the writ petition are the same, as such, both are being disposed of by a common order. 1. THE revision is filed under Section 115 of the Code of Civil Procedure aggrieved by the docket order dated 25-9-2010 made in E.A.No.25 of 2010 in E.P.No.98 of 2007 in O.S.No.140 of 2006, on the file of the Junior Civil Judge, Bodhan. THE petitioners herein filed the said E.A.No.25 of 2010 in E.P.No.98 of 2007 under Section 151 of the Code of Civil Procedure for their release till the disposal of some petition (it is not disclosed what is that petition). THE said E.A was filed for the release of Judgment-debtor No.2, who is the 1st petitioner herein on the ground that the Court had not followed necessary procedure enjoined in Order 21 Rule 40 C.P.C before sending him to civil prison, and no opportunity was given to contradict the statement of the decree- holder and the decree-holder required to be examined in the presence of the judgment-debtor. THE said petition was dismissed by the impugned docket order dated 25-9-2010, which reads as follows:

(2.) THE brief facts of the case as set in the revision and the lower Court records are as follows: THE 1st respondent S.K.Wasim Ahmed filed the suit i.e., O.S.No.140 of 2006, on the file of the Junior Civil Judge, Bodhan against both the petitioners herein viz., Ibrahim and Kafiya Begum and also one Zaheeruddin seeking relief of perpetual injunction and the suit was decreed ex parte on 21-11-2006. On the ground that the ex parte injunction decree was disobeyed by the judgment- debtors i.e., Zaheeruddin, Ibrahim and Smt Kafiya Begum, the decree-holder/ respondent herein filed E.P.No.98 of 2007 in the said suit i.e., O.S.No.140 of 2006 under Order 21 Rule 32 of the Code of Civil Procedure against them the judgment- debtors 2 and 3, the petitioners herein to send them to civil prison. It was the contention of the decree-holder/respondent No.1 that the decree was obtained by him against the judgment debtors restraining them from interfering with his possession over the suit schedule property and is proceeding with the construction of mulgis therein, but the judgment-debtors/ petitioners disobeyed the decree passed by the Court by illegally trespassing into his plot and dismantling the sentry material therein and therefore sought to send the judgment-debtors 2 and 3/petitioners to the civil prison.

(3.) IN view of the above, we are of the opinion that the petitioner ought to have questioned the said warrant of committal dated 28-8-2010 as the committal of judgment-debtor to civil prison cannot be more than one month that is contrary to the E.P order. Though the petitioner has not questioned that order, we are of the opinion that the warrant cannot be contrary to the E.P order. The scope of this revision is only with regard to the validity and illegality of the docket order dated 25-9-2010. The 1st petitioner has only sought for his release and as per the record as the petitioner already served the civil prison for a period of 45 days i.e., more than one month and as the petitioner has not questioned the order in E.P, we are of the opinion that nothing survives in the revision. Accoidingly, the revision is liable to be dismissed.