RAGHU BHOI Vs. PARESWAR BHOI

JUDGEMENT

(1.) This revision has been filed by the defendants Nos. 1, 2 and 4 who were the judgment-debtors Nos. 1, 2 and 4 respectively in Execution Case No. 2/85 in the Court of the Munsif, Kuchinda, against the order dated 2-11-1989 passed in the said execution case rejecting their objection to the alleged delivery of possession in favour of the decreeholder-plaintiffs.

(2.) The short facts of the case are stated as follows:- The plaintiffs Opposite Parties Nos. 1 and 2 (of the Civil Revision) obtained a decree for partition in Title Suit No. 7 of 1971 on 23-8-1982. The final decree passed in the partition suit has not been challenged in a first appeal by any party and has become final wherein the plaintiffs were allotted Ac. 3.85 dec. of land whereas the defendants were allotted Ac. 3.87 dec. of land. The properties were divided by the Civil Court Commissioner during the final decree proceeding and allotment sheet show that the plaintiffs were allotted land as per Schedule I of the Commissioner's report and the defendants were allotted lands as per Schedule II of the Commissioner's report which formed part of the decree. Since the parties were entitled to part plots in the final decree proceeding the lands were delineated and the sketch map was also attached for the purpose which formed part of the decree. Therefore, there was no dispute regarding the identity of the land that was to be delivered to each party.

(3.) At the instance of the plaintiff-decreeholders, the execution case was initiated in the Court of the Munsif, Kuchinda and on 30-5-89 the possession was delivered to the plaintiffs as has been reported by the process-server who was entrusted with the duty of executing the writ of delivery of possession. The judgment-debtors, namely, defendants Nos. 1, 2 and 4 have filed their objection thereafter alleging that actual possession was not delivered to the plaintiffs, no survey knowing Commissioner was deputed to demarcate the land allotted to the plaintiffs and defendants-judgment-debtors were not given any notice regarding delivery of possession and prayed for fresh and actual delivery of possession and prayed for maintaining the status quo of the land till then. In the impugned order dated 2-11-1989 the executing Court turned down the objection of the judgment-debtors on the ground that the symbolical delivery of possession amounts to physical delivery of possession and since there was delivery of possession to the decreeholder, no further direction may be given for a fresh delivery of possession. During hearing of this revision, it is argued on behalf of the judgment-debtor-petitioners that since most of the plots were part plots, the defendants were entitled to notice. It was further contended on their behalf that the judgment-debtors were actually in possession in respect of which possession was to be delivered to the decree-holder and since there was no actual physical delivery of possession they still continue to be in possession of the land and that will not amount to the delivery of possession within the meaning of O. 21, R. 35(1) of the Code of Civil Procedure and unless actual delivery of possession is delivered by sending a survey knowing Commissioner who may measure andd demarcate the land, there is possibility of future litigations between the parties. The Court, therefore, had not acted properly and acted illegally in rejecting the prayer of the present petitioners. Coming to the first point regarding notice to the petitioners judgment-debtors) by the process-server who went to effect the writ of delivery of possession, the law is absolutely clear on the point. Order 21, R. 22 of the C.P.C. enjoins upon the executing Court to issue notice to the persons against whom the execution is applied for requiring him to show cause against the execution of the decree against him when the execution is intended to be done in one of the three circumstances as envisaged in that rule. This notice is not mandatory in every case. As per the proviso to this rule no such notice shall be necessary in certain cases. Besides sub-rule (2) of the said rule authorises the Court to issue process in execution of a decree without issuing notice as prescribed if for reasons to be recorded, it considers that the issue of notice would cause unreasonable delay or would defeat the ends of justice.