BHIMA PADHAN Vs. MASYARAJU 5 ORS.

JUDGEMENT

(1.) THIS revision is directed against an order under Order 21, Rule 97, Code of Civil Procedure. The facts, in brief, are that on the application of decree -holder -opp. parties Nos. 1 to 1(b) for delivery of possession of the disputed property, the Court issued a writ of delivery of possession. The Amin who was entrusted with the writ was obstructed by the judgment debtor No. 2's father, brothers and others when he proceeded to execute the writ on 2 -2 -1961. As such delivery could not be effected. The decree -holder -opp. parties filed an application under Order 21, Rule 97, Code of Civil Procedure alleging obstruction by the father, two brothers and sons of judgment -debtor No. 2 in respect of delivery of possession of items Nos. 1 and 2 of A Schedule property and by one Baban Padhan in respect of item No. 3. This application was resisted by the Petitioner and others on the ground that on a previous partition, the disputed property had fallen to their share in which Rajib Padhan, judgment debtor No. 2 had no interest and was not in possession. The Court below allowed the petition and directed decree -holders to be put in possession by removal of the obstruction.

(2.) THOUGH various objections were taken in the petition, at the time of hearing, learned Counsel for Petitioner confined his arguments to the following points: (1) The application under Order 21, Rule 97, Code of Civil Procedure being clearly barred by limitation the order of the Court below is not sustainable and (2) no specific finding has been given by the Court below that resistance or obstruction was occasioned without a just cause.

(3.) MR . Rao, learned Counsel for opp. parties Nos. 1 to 1(b), while conceding that Section 5 of the new Limitation Act excludes from its purview applications under Order 21, Code of Civil Procedure, contends that in the present case, Section 5 as it stood under the repealed Act, is applicable and not Section 5 of the new Act. This contention is based on the Orissa Amendment to Order 21, Rule 97, Code of Civil Procedure by adding Sub -rule (3) which runs as follows: