MADANMOHAN Vs. KABULBAI

JUDGEMENT

(1.) Being aggrieved by the order dated 21-6-2012 passed by Civil Judge, Class II, Sanawad in Execution Case No. 9/09 whereby application filed by the petitioner under Section 151, CPC was dismissed, present petition has been filed. Short facts of the case are that in execution petition filed by respondent an application was filed by the petitioner wherein it was alleged that since there was no interim injunction against the petitioner in civil suit, therefore, petitioner has constructed three storied house on the suit property, therefore, now at this stage the execution of decree is not possible. In the application, it was prayed that respondent be compensated by payment of compensation, therefore, the amount be determined, which can be paid to the respondent. The application was opposed and was dismissed, hence this petition.

(2.) Facts of the case are that civil suit was filed by the respondent in the year 1987, which was numbered as Civil Suit No. 23-A/87 and was dismissed on 16-9-05, against which an appeal was filed by the respondent, which was numbered as 41-A/05 and was allowed vide judgment dated 30-4-08 whereby judgment passed -by learned Trial Court was set aside and the suit filed by the respondent was decreed whereby petitioner was directed to remove the construction raised by the petitioner from the land measuring 0.42 meter in width from east to west and 14.50 meter in length from north to south within a period of two months, against the said judgment and decree passed by Appellate Court, second appeal was filed by the petitioner, which was dismissed. Thereafter, the execution petition has been filed.

(3.) Learned Counsel for the petitioner argued at length and submits that learned Court below committed error in dismissing the application filed by petitioner. It is submitted that since the petitioner has constructed the house, which is three storied, therefore, in the facts and circumstances of the case the only remedy was to compensate the respondent in terms of money. It is submitted that the petition be allowed and impugned order passed by learned Court below be set aside and the respondent be compensated.