KAMAKHYA PRASAD Vs. UDAY CHAND MAHATAB BAHADUR

JUDGEMENT

(1.) The Respondent, having obtained a decree for money against the present Appellant, put the decree into execution on February 15, 1945, and in these proceedings the property of the Appellant was put to sale on June 4, 1945, and purchased by the Respondent decree-holder. It appears that, in spite of an order issued by this Court, restraining further proceedings in the execution case, the sale was confirmed on April 16, 1946. An application for delivery of possession under the provisions of Order XXI, Rule 95 of the Code of Civil Procedure, was made on November 26, 1946. Successive writs for delivery of possession proved unsuccessful. The last writ that was returned unexecuted had been issued on July 12, 1949.

(2.) It was returned unserved on August 12, 1949, with a report that the writ could not be executed as regards one item of the properties because of resistance by a third party and could not be executed as regards the remaining properties because the decree-holder's man could not identify the properties. Thereafter, the case was adjourned by the court to August 27, 1949. On that date, the decree-holder auction-purchaser, the present Respondent before us, filed a petition for time for fifteen days to enable him to file a petition under Order XXI, Rule 97 of the Code of Civil Procedure. The order passed by the court on this application for time was in these words:

(3.) On September 7, 1949, an application under Order XXI, Rule 97 of the Code of Civil Procedure, was actually filed, but that was finally dismissed on June 26, 1950, the court being of opinion that the application was time barred. On July 29, 1950, the Respondent filed another application for delivery of possession under Order XXI, Rule 95 of the Code of Civil Procedure. This was opposed by the judgment-debtor on two grounds. In the first place, it was contended that the application was barred by limitation having been filed more than three years after the date of confirmation of the sale. In the second place, it was argued that the application under Order XXI, Rule 97 of the Code of Civil Procedure having been dismissed, no delivery of possession under Order XXI, Rule 95 of the Code of Civil Procedure, could further be ordered by the court and the only remedy of the Respondent was by way of a fresh suit. Both these objections were overruled by the learned munsif. In appeal, the learned district judge has agreed with the trial court on both these points and has confirmed the order rejecting the objections raised by the judgment-debtor.