GARUDA SINGH Vs. DHANA BAI

JUDGEMENT

(1.) Plaintiff is the petitioner in this Civil Revision.

(2.) Title Suit No. 10 of 1971 was filed for declaration of title and recovery of possession of 21 acres 11 decimals of land declared to be in possession of the defendants in a proceeding under S.145, Cr.P.C. The suit was decreed ex parte. While the application of the defendants for setting aside the ex parte decree was pending, plaintiff got the delivery of possession of the properties through the Executing Court on 2-3-1973 in execution of the ex parte decree for recovery of possession. The application under O.9, R.13, C.P.C., which was rejected by the trial Court was allowed by this Court in M.A. No. 68 of 1973 on 29-7-1975 and the ex parte decree was set aside. Thereafter, the defendants filed an application for restitution which was allowed by the Executing Court on 1-3-1977. Before delivery of possession to the defendants on the basis of the order of restitution, the suit was dismissed for default and was restored to file without notice to defendants. Thereafter, on 3-11-1977 plaintiff again obtained an ex parte decree, which has since been set aside on 19-7-1979. On the decree being set aside, the defendants filed an application on 31st October, 1980 praying the Executing Court to give effect to the order dated 1-3-1977, for restitution of the property. The material portion of the petition reads as follows :-

(3.) Mr. D.P. Sahoo, the learned counsel for the decree-holder, submitted that the trial Court exercised jurisdiction with material irregularity in finding that the order dated 1-3-1977 still holds good without taking into consideration that the basis of the order dated 1-3-1977 was lost when the suit was again decreed ex parte although the same has subsequently been set aside. Mr. P. Palit, the learned counsel for the judgment-debtors, on the other hand justified the impugned order submitting that the order for restitution being a decree became final since no appeal was preferred against the same.