RAMSWAROOP Vs. JEETMAL

JUDGEMENT

(1.) BEING aggrieved by the judgment dated 8-11-01 passed by II ADJ Shajapur in MJC No. 10/2000 whereby the application filed by the respondents under Section 151, CPC dated 7-4-2000 was allowed and it was directed that in the judgment and decree dated 7-4-2000 passed in First Appeal No. 44-A/99, length of the house be read as 57 ft. instead of 17 ft., against which the present petition has been filed.

(2.) SHORT facts of the case are that Late Jeetmal whose L.Rs. are the respondents, filed a suit for possession on 19-2-44 for the property situated at Nai Sadak, Shajapur. The suit was contested by Ramswaroop whose L.Rs. are the petitioners. Vide judgment dated 19-12-53, suit filed by deceased Jeetmal was decreed in respect of the land mentioned in the map attached with the plaint. Against the judgment dated 19-12-53 passed by learned Civil Judge, an appeal was filed by deceased Ramswaroop which was numbered as Civil Appeal No. 10/ 54. The appeal was dismissed vide judgment dated 31-1-1959. After dismissal of appeal, execution petition was filed by deceased Jeetmal-decree holder in which objections were filed by the petitioner on 16-10-59 and the warrant of possession was issued against the petitioners for the property shown in the map vide Exh. D-1. On 8-10-1960, Nazir submitted a report to the effect that land is not in accordance with the map and expressed his inability to deliver the possession. Somewhere in the year 1960 possession was handed over to the respondents. Thereafter, petitioners filed an application on 21-1-1961 wherein correctness of the warrant of possession was challenged and it was alleged that possession of excess land has been delivered to the respondent. It was prayed that possession be re-delivered to the petitioners. The reply was filed by the respondents on 4-2-1961 and vide order dated 12-11-1964, the objections filed by the petitioners were rejected, against which an appeal was filed by the petitioners which was allowed vide order dated 9-5-1970 wherein it was ordered that if the respondents have obtained possession of excess land then the same be redelivered to the petitioners. Against the order dated 9-5-1970 the matter came up before this Court in M.A. No. 98/70 and appeal filed by deceased Jeetmal was dismissed on 17-12-74. Thereafter on 6-5-82, petitioners filed an application under Section 144 read with Section 151, CPC for restitution of possession in compliance with the order dated 9-5-1970. This application was dismissed vide order dated 30-7-1984 by the Executing Court against which the petitioners filed an appeal which was numbered as 24/84 and was allowed by I ADJ, Shajapur vide order dated 25-3-86 and the case was remanded to the Executing Court, against which again Second Appeal was filed by Jeetmal before this Court which was numbered as S.A. No. 189/86, which was dismissed vide order dated 11-7-86. After the remand, vide order dated 25-8-86 the Executing Court passed an order for restitution. Against the order passed by the Executing Court, revision petition was filed which was dismissed somewhere in the year 1988 and Executing Court passed an order whereby Commissioner was appointed for spot inspection. Against this order whereby the Commissioner was appointed, revision petition was filed which was numbered as Civil Revision No. 9/93 and vide order dated 13-9-94 directions were issued to the petitioners to submit a map as per Exh. D-1. Prayer was also made by the respondents to direct the Executing Court to proceed on the basis of map was rejected. Thereafter on 23-6-98, Executing Court dismissed the application against which an appeal was filed by the petitioners which was numbered as E.A. No. 44/99 and was allowed vide order dated 7-4-2(X)0 and it was directed that possession of excess area which has been given to the respondent-decree holder should be restored to the appellants as per details given in the judgment. Against the order passed in F.A. No. 44/99 matter came up before this Court in Second appeal filed by the respondents which was dismissed by this Court vide order dated 10-5-2000. Against the order passed by this Court on 10-5-2000 in Second Appeal, MCC was filed by the respondents which was numbered as MCC No. 214/2000 and was dismissed on 21-6-2000. Thereafter respondents filed an application before Appellate Court under Section 151, CPC praying that order dated 7-4-2000 be corrected. This application was opposed by the petitioners by submitting a detailed reply. Thereafter another application was filed by the respondents on 6-11-2000 wherein again it was prayed that order dated 7-4-2000 be corrected. On 2-11-2001, the Presiding Officer of the Court inspected the spot and thereafter on 8-11-2001 passed the order impugned herein whereby it was directed that description of length of house mentioned as 17 ft. in the judgment dated 7-4-2000 should be read as 57 ft. as all places. Being aggrieved by the order dated 8-11-2001, the present petition has been filed.

(3.) LEARNED Counsel further submits that application filed under Section 151/152 itself was not maintainable as it was filed before First Appellate Court. It is submitted that against the judgment passed by First Appellate Court, Second Appeal was filed which was numbered as 150/2000 which was dismissed vide order dated 10-5-2000, therefore, application could not have been filed before First Appellate Court. Reliance was also placed on a decision in the matter of Deputy Director, Land Acquisition Vs. Malta Atchinaidu, AIR 2007 SC 740, wherein Hon'ble Apex Court has held as under :-