RAMJI BHAI PATEL Vs. DURGABAI

JUDGEMENT

(1.) THE degree holder -petitioner obtained a decree for possession against the respondents (except respondent No.9) for restoration of possession of the land shown by the letter 'BONML' in the plain map vide decree dated 16.1.1996 from the Court of XV Civil Judge, Class II, Jabalpur in Civil suit No.428 -A/84 as revealed in Annexure -2. Plain map is contained at page No.11. The decree was confirmed by this Hon'ble Court up to the stage of Second Appeal in SA No.310/2001 vide order dated 3.9.2001 as revealed in Annexure - 3. An application under section 47 of Code of Civil Procedure Code was submitted by the judgment debtor on the ground that the decree holder in execution of the decree is trying to obtain possession of adjacent land shown by green ink which altogether is different from the subject matter of the decree. Certain other objections were also raised. This application was dismissed on 14.3.2002 by the Executing Court on a cost of Rs.300/ - as revealed in Annexure -6. Thereafter, an application under O.21 R.97 of Code of Civil Procedure was submitted by respondent No.9 on the ground that he was in occupation of a piece of land admeasuring 15 x 156 ft. (2340 sq. ft.) for preceding 3540 years and was running his business in the name and style of "M/s. Narmada Timber" It was stated that the decree was obtained secretly without imp -leading him and the same was not binding on him. This application was dismissed by the Executing Court on 9.7.2002 on a cost of Rs.1,000/ - vide Annexure -7. The rejection of the application under O.21 R.97 of Code of Civil Procedure was upheld in Civil Miscellaneous Appeal No.93/02 vide order dated 28.8.2002 contained in Annexure -8. This was further challenged before this Court in Second Appeal No.604/ 2002 which was disposed of vide Annexure -9 with the following directions:

(2.) RESPONDENT No.9 instituted a suit for perpetual injunction against the decree holder -petitioner and police authorities wherein his application under O.39 R.1 and 2 of Code of Civil Procedure was dismissed by the Court of IV Additional District Judge, Jabalpur in Civil Suit No.256 -A/2002 vide order dated 28th August, 2002 contained in Annexure -10. In the meantime, a warrant of possession was issued by the executing Court on 19.7.2002. Execution report is contained in Annexure -II which establishes that the decree holder obtained possession of the portion which was occupied by Durgabai. However, the possession of the remaining portion could not be handed over as the same was found to have been occupied by one Awasthy and Sons which caused obstruction in the delivery of possession by using show of physical strength. Accordingly, it was reported by the execution employee of the Court that the possession of the entire suit property could not be delivered to the decree holder.

(3.) THEREAFTER , the judgment debtor submitted an application under O.21 R, 97 of CPC read with section 47 and 151 of CPC stating thereby for the first time that the decree for possession has already been executed and the possession of the disputed property shown by letter BONML has been delivered to the decree holder. It was further stated that the adjacent portion shown by the letters BLJK is occupied by them which is shown by green colour. This green colored portion is not the subject matter of the decree and yet the decree holder is trying to obtain its possession in execution of decree. This was refuted by the decree holder. Executing Court vide its order dated 8.5.2006 contained in Annexure -16 clearly found that green colored portion is altogether different and the decree holder is merely claiming possession of the remaining land (distinct from green colored portion) as per the terms of the decree. The learned Executing Judge found that the execution was being obstructed on frivolous grounds and accordingly, the said application under O.21 R,97 read with section 47 CPC was dismissed vide Annexure -16 on a cost of Rs.1,000/ -.