JAYGOPAL Vs. DEVIRAM

JUDGEMENT

(1.) THIS is an appeal filed by the Appellant who is a decree -holder and his appeal arises out of the execution proceedings. The Appellant had obtained a decree of pre -emption against Deviram and others. When an application for execution of the decree was presented before the Civil Judge, First Class, Morena, the Nazir was sent for the delivery of the possession of the property to the decree -holder. It appears that the house in question is in possession of several tenants who do not want to vacate it. An order, therefore, was passed by the Court for delivery of immovable property according to Order 21, Rule 36 and symbolical possession has been delivered to the decree -holder.

(2.) IT is true that when the case came up on 18 -12 -50 the counsel for the Appellants did not invite the attention of the Court to the questions pending consideration. But it was wrong on the part of the Court to say that nothing remained on the file to be done and to dispose of the file on that ground. For all this, I am of opinion that the decree -holder himself was responsible as he did not instruct his counsel. I, therefore, think that this appeal be allowed but the decree -holder should be deprived of his casts of this appeal and should also pay costs to the Respondents.

(3.) I agree.