MST. DULIYABAI Vs. VILAYATALI

JUDGEMENT

(1.) THE plaintiffs have filed this appeal against the dismissal of their suit by Shri S. Rafiullah, Additional District Judge, Chhindwara dated 30 -12 -1953 In Civil Suit No. 9 -A of 1952. A separate finding was recorded leading to the judgment and decree which are the subject of this appeal.

(2.) IT is necessary to reproduce the respondents' family tree for a proper appreciation of the facts.

(3.) SUBSEQUENTLY a final decree for foreclosure was passed in the year 1943 by the trial Court. Mst. Hasnoobi filed First Appeal No. 124 of 1944 in the Nagpur High Court, which was ultimately dismissed on 22 -11 -1951. During the pendency of the said appeal Smt. Hasnoobi did not obtain any stay order. Therefore, the plaintiffs started execu -tion of the final decree for foreclosure. The present defendants obstructed the delivery of possession of the suit property to the plaintiffs. Thereupon the plaintiffs filed an application under Order 21, Rule 97 of the Civil Procedure Code. It was registered as Miscellaneous Judicial Case No. 29 of 1947. By order dated 18 -9 -1948, it was dismissed. The plaintiffs filed Miscellaneous Appeal No. 206 of 1948 against the same, in this Court, presumably on the assumption that the order 18 -9 -1948 was one under Section 47 of the Civil Procedure Code. The appeal was dismissed on 7 -12 -1951. Therefore, the plaintiffs filed the present suit, namely Civil Suit No. 9 -A of 1952. on 8 -12 -19 -52 under Order 21. Rule 103 of the Civil Procedure Code.