BHUBANPATI SINGH Vs. PRAJAPATI SHARMA

JUDGEMENT

(1.) This present revision petition has been projected against the order dated 9.1.2002 passed by the learned Civil Judge (Senior Division) No. 1, Guwahati in Title Execution No. 14/96 rejecting an application under Order 21 Rule 101 of the Code of Civil Procedure read with Section 151 of the CPC filed by the revision petitioners/judgment debtors.

(2.) I have heard Shri S.P. Roy, the learned advocate for the petitioners as well as Shri S. Sarma, the learned counsel for the respondent No. I/decree holder.

(3.) The fascicule of facts relevant for the purpose of disposing the present petition can be narrated hereunder. The present opposite party No. 1 and one Arun Kr Konwar had filed T.S. No. 217/91 in the Court of Assistant District Judge No. 1, Kamrup at Guwahati against Smt Rukmini Devi Singh, the predecessor in interest of the present revision petitioners praying for a decree inter-alia for specific performance of contract for sale of the land involved in the suit. The suit was later, on transferred to the Court of the learned Assistant District Judge No. 2, Kamrup and was renumbered as T.S. No. 73/93. Smt Rukmini Devi Singh expired on 6.1.92 and was substituted by the present revision petitioners in the suit. Later on, Shri Arun Kr. Konwar withdrew from the suit and, thereafter, the opposite party No. 1 filed an application to add the opposite party No.2 as defendant in the suit. Accordingly, the plaint was amended. The suit was ultimately decreed ex-parte on 16.7.94 as the defendants/revision petitioners failed to contest the suit. The opposite parties-plaintiffs thereafter started the execution case No. 3/95 which was later on transferred to the Court of Assistant District Judge No. 1, Kamrup at Guwahati. Eventually, in terms of the decree passed in the suit, a sale deed was executed in favour of the opposite party-plaintiffs on 3.9.96 through the same Court. While the matter rested at that, the revision petitioners filed an application under Order 21 Rule 101 of the CPC mentioned above in the execution case which had been registered as Title Execution Case No. 14/96 on transfer to the Court of Civil Judge (Sr. Division) No. 1, Guwahati and prayed for adjudication of the dispute regarding the possession of the suit land between them and the decree holders-plaintiffs/opposite party. Keeping in view the limited legal issue involved in the present proceedings, narration of intervening facts have been avoided. Suffice it to say, it was contended, therein, that though the plaintiffs opposite party had failed the suit for specific performance of contract and confirmation of possession over the suit land at no point of time the petitioners or Smt Rukmini Devi Singh had handed over to them actual physical possession thereof. It was only in the 1 st week of March, 2000 that the plaintiffs-opposite party came to the suit land and tried to occupy the same forcibly and when the petitioners resisted the said action, the opposite party-plaintiffs replied that a sale deed had already been executed in their favour in respect of the suit land pursuant to the ex-parte decree dated 16.7.94. The petitioners contended that they came to know about the ex-parte judgment and decree only on 5.3.2000. They claimed to be in exclusive physical possession of the suit land and, therefore, contended that the attempt on the part of the opposite party-plaintiffs to take forcible possession thereof has given rise to a bonafide dispute between them which ought to be adjudicated by the Court under Order 21 Rule 101 of the CPC.