BANKARAM KUMBHAR Vs. BUDEL MURMU

JUDGEMENT

(1.) The petitioners by filing this application under Art. - 227 of the Constitution seek quashment of order dated 27.02.2007 passed by the learned Civil Judge (Sr. Division), Rourkela in Execution Case No. 11 of 2003 rejecting their application for reissuance of warrant of delivery of possession of the suit land with a direction to bailiff to execute the said warrant effectively and if so necessary with the assistance of police.

(2.) Heard learned counsel for the petitioners. None appears on behalf of the opposite parties. I have gone through the order in question.

(3.) The petitioners as the plaintiffs had filed the suit i.e. Title Suit No. 08 of 1996 for declaration of their right, title, interest and for confirmation of possession in respect of the suit land with the alternative prayer for delivery of possession of the suit land or any portion thereof, if they are found to have been dispossessed. The suit stood decreed in part in favour of the petitioners (plaintiff). So as the Decree-Holders, the petitioners filed an application for execution of the said decree which was numbered as Execution Case No. 11 of 2003. The opposite parties (judgment debtors) did not enter appearance in the execution proceeding on being noticed. Be that as it may in the execution proceeding only on 30.08.2006, they had once filed an application nomenclatured as one under Order 21, Rule 106 of the Code of Civil Procedure to set aside the ex parte order along with the application for condonation of delay and thereafter remained all of. Upon the move of the petitioners (decree holders) writ of delivery of possession of the land decreed in favour of the petitioners was issued to the bailiff of the court on 30.03.2006. The bailiff went to the spot and found opposite parties (judgment debtors) creating disturbance. So he sought for the police help. The writ of delivery of possession was again issued for its execution in the field with police assistance. It is stated that on that occasion the bailiff went and asked the opposite parties (judgment debtors) to remove their goods from the suit house and when they removed some of those goods, the bailiff stating to have given the delivery of possession to the petitioners (decree holders) reported accordingly taking the signatures of the petitioners. It is next alleged that soon after the bailiff returned, the opposite parties (judgment debtors) using muscle power remained in possession. So the petitioners again filed the application before the executing court to redress their said grievance in giving them the possession of the decreetal land. The executing court rejected the said petition solely on the ground that the delivery of possession of the decreetal property once having been given and the report to that effect having been submitted there cannot be issuance of the writ of delivery of possession to the bailiff again. The trial court thereby did accept the report of the bailiff.