LAWS(MPH)-2018-3-130

PADAM SINGH Vs. RADHELAL

Decided On March 14, 2018
PADAM SINGH Appellant
V/S
Radhelal Respondents

JUDGEMENT

(1.) This second appeal filed under Section 100 Code of Civil Procedure is directed against the judgment dated 29.09.2006 passed by III rd Additional District Judge, Raisen in F.A. No.11-A/2006 affirming the judgment and decree dated 12.07.2006 passed by II nd Civil Judge Class II, Raisen in Execution Case No.8/37-A/82-05 (Radhelal Vs. Tulsiram).

(2.) Draped in brevity, Radhelal, the respondent/decree holder instituted original civil suit No.33-A/1982 for possession which was decreed in his favour on 03.12.1983. First Appeal No.34-A/1988 filed by Tulsiram was dismissed on 25.09.1990. This judgment of first appeal was assailed by Tulsiram in S.A. No.564/1990. This Court by judgment dated 29.07.2004 remitted the matter back to the first appellate Court with certain directions. In turn, First Appeal No.34-A/1988 was heard and dismissed again on 17.03.2005. This judgment was unsuccessfully challenged by Tulsiram in S.A. No.996/2005, which came to be dismissed by judgment dated 17.08.2005 (Annexure-R/1). Since fruits of judgment and decree were not passed on the decree holder, he filed Execution Case No.8/37-A/82/05. In this execution proceedings, the present appellants/objectors filed an application under Order 41 Rule 97 read with Section 47 CPC on 22.04.2006. The decree holder filed his response to the said application. Thereafter, the executing Court by judgment dated 12.07.2006 (wrongly mentioned as 12.07.2007) rejected the said application. Aggrieved, the appellants filed F.A. No.11-A/2006 before the Court below. After hearing the parties, by judgment dated 28.09.2006, the Court below affirmed the order passed by the executing Court dated 12.06.2007.

(3.) Shri Chakraverti, learned counsel for the appellants by placing reliance on Section 47, Order 21 Rule 97 and Rule 101 of CPC contended that when categorical objection is raised by the appellants about their possession on the suit property for more than 35 years, the executing Court should have conducted an inquiry, permitted the objectors to lead evidence and establish their possession. Reliance is placed on AIR 1997 SC 856 (Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal and others), AIR 1998 SC 1754 (Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another) and AIR 2002 SC 3083 (Tanjeem-E-Sufia Vs. Bibi Haliman and others). Learned counsel for the appellants contended that without conducting any inquiry, the objection could not have been rejected summarily.