YOGESH SHAH Vs. DHARMESWARI DEVI ALIAS DHARMESWARI DEVI

JUDGEMENT

(1.) The present writ petitioners instituted, as plaintiffs, Title Suit No. 91 / 97, in the Court of the Civil Judge (Senior Division), No. 2, Kamrup, Guwahati, seeking declaration of their rights, title and interest over the suit property and recovery of possession thereof by evicting the defendant- respondent herein from the suit property. By the judgment and order, dated 24-12-2003, the said suit was decreed in favour of the plaintiffs-petitioners. The decree, so granted, came to be challenged by the defendant-respondent herein as appellant, in Title Appeal No. 1/2004. When the appeal came up for hearing on 27-9-2004, the counsel for the defendant-respondent was found absent. The appeal was, therefore, dismissed for default on 27-9-94.

(2.) A petition seeking re-admission of the appeal was made by the defendant respondent herein on 12-4-2004. Pending disposal of the petition for re-admission of the appeal, which had been filed by the defendant, the decree, in question, was executed on 21-5-2005. Though the defendant filed a petition for stay of the execution of the decree pending re-admission of the appeal, the Court declined to stay the decree on the ground that the decree already stood executed on 21-5-2005. The defendant-respondent herein, then, filed a petition, on 1-7-2004, under Section 151 read with Section 94 of the Civil Procedure Code (in short, 'the Code') praying, inter alia, for an order of injunction restraining the decree-holders from raising any structure on the suit land and also restraining them from alienating the suit land in favour of any one till disposal of the appeal. This petition gave rise to Misc. Case No. 237/2004. The plaintiffs filed their objection against the petition for injunction so made by the defendant. The learned Appellate Court, then upon hearing the learned counsel for the parties, passed an order, on 25-8-2004, granting injunction, as had been sought for by the defendant, till disposal of the appeal. This order was challenged by the plaintiff by way of a writ petition in this Court, which gave rise to WP(C) No. 7825/2004. By order, dated 16-10-2004, the said writ petition was disposed of on being withdrawn by the petitioner with liberty to approach the Court with appropriate application. This liberty has resulted into filing of the present writ petition by the plaintiffs.

(3.) I have heard M. R. L. Yadav, learned counsel for the plaintiffs-petitioners, and Mr. G. Mishra, learned counsel, appearing on behalf of the defendant-respondent.