JAGIVAN DAS JAISWAL Vs. NOHARI BAI

JUDGEMENT

(1.) This civil revision has been preferred by the applicant/plaintiff/decree-holder challenging the order dtd.12/5/2015 passed by Second Civil Judge Class-II, Shahdol in MJC No.9/2013 whereby Executing Court has, while deciding the respondents/judgment debtors' application under Sec. 11 and 151 of CPC dtd. 5/1/2015 (IA No.7), dismissed the execution application filed under Order 21 Rule 32 r/w Sec. 151 of CPC holding it to be not maintainable due to previous execution of judgment and decree by delivery of possession vide order dtd.9/11/2001.

(2.) Facts in short are that a judgment and decree declaring the plaintiff to be bhumiswami of the land in question, restoration of possession as well as for permanent injunction (after restoration of possession), was passed on 31/3/1998 by Additional Civil Judge Class I, Shahdol in civil suit No.94-A/1997, which was affirmed vide judgment and decree dtd.6/8/1999 in civil appeal filed by respondents' ascendant-Shambhu s/o Pardesi Kumhar and upon filing execution application, the judgment and decree of possession was executed and the plaintiff was put in possession. As there was decree of permanent injunction also, therefore, an application under Order 21 Rule 32 r/w Sec. 151 of CPC was filed by the applicant with the contention that although in pursuance of judgment and decree of declaration of title and restoration of possession, the plaintiff was put in possession on 9/11/2001, but later on the judgment debtors again in the year 2005 dispossessed the plaintiff from the suit land, thereupon contempt proceedings were initiated, which were dismissed on 16/7/2009 and in the misc. appeal I Addl. District Judge dismissed the appeal as not maintainable on 18/5/2012 with the observation that the applicant has remedy by way of application under Order 21 Rule 32 and Sec. 47 of CPC and as such by moving the said application, prayer for restoration of possession was made.

(3.) Upon service of notice on the respondents reply to the application was filed. Thereafter, an application under Sec. 11 and 151 of CPC was also filed by them with the submissions that, as the decree of possession has already been executed by putting the plaintiff in possession on 9/11/2001, hence again upon dispossession of plaintiff, the application filed under Order 21 Rule 32 of CPC is not maintainable and deserves to be dismissed on the ground of res judicata.