HARI RAM Vs. PRAKASH CHAND DHEERAN

JUDGEMENT

(1.) This revision application under Section 115 of Code of Civil Procedure (in short "CPC") has been filed against the order dated 22.10.2007 passed by learned First Additional District Judge, Hoshangabad in Execution Case No.8-A/1969 whereby the application of the decree-holders/applicants under Section 47 read with Section 151 CPC has been dismissed.

(2.) The facts in brief for the disposal of this revision lie in a narrow compass. Suffice it to say that a suit for specific performance of contract was filed in regard to disputed house and learned Trial Court vide judgment dated 06.02.1976 in C.S. No.8-A/1969 passed the decree of specific performance of contract and said decree was affirmed in first appeal by learned Single Judge of this Court. However, in L.P.A. No.1/1982 the Division Bench of this Court partly allowed the appeal of respondents vide judgment dated 08.05.1997 to the extent that defendant no.1 shall execute the sale-deed in respect to two rooms of suit house in which the plaintiff is already in possession. The judgment of Division Bench of this Court was assailed by the plaintiff in SLP before the Supreme Court and the Supreme Court disposed of SLP vide order dated 16.10.2001 by passing the following directions :-

(3.) On bare perusal of the impugned order, it is gathered that earlier a commission was executed for measurement of decretal portion which is in possession of the applicants but according to the applicants the commissioner did not find the possession of decree-holders on the rear side of room. According to decree-holders the Supreme Court specifically directed to execute the sale-deed in regard to two rooms vide its order dated 16.10.2001. Eventually, an application under Section 47 r/w 151 CPC has been filed by the present applicants-decree holders that although earlier the commission was executed to inspect the decretal portion but their Senior Advocate had gone to Delhi and therefore it was executed in presence of Junior Advocate did not file any objection although it was required by him to file the same. Eventually by filing the instant application under section 47 and 151 CPC in the Executing Court it has been prayed that earlier commissioner's report dated 08.09.2004 be set aside and fresh commission be issued by appointing a new Commissioner and thereafter opportunity to adduce oral and documentary evidence be provided to the decree-holders. This application was vigorously opposed by judgment-debtor by filing reply. The learned Executing Court rejected the aforesaid application of the decree-holders by passing the impugned order.