SIRI CHAND Vs. JUG LAL AND ORS.

JUDGEMENT

(1.) This is a revision petition directed against the order dated 5.1.2002 passed by the Civil Judge (Jr. Divn.) Sirsa rejecting the application for calling back the warrant of possession issued by the executing Court and also to stay its' implementation. The decree holder -respondent has filed the application seeking execution of judgment and decree dated 17.5.1996.

(2.) Brief facts of the case are that the decree holder -respondents filed a civil suit No. 1044 of 1993 against 12 persons including the judgment debtor -petitioner Siri Chand. The suit was contested by all the judgment debtor -respondents No. 3 to 21 or their predecessors -in -interest except judgment debtor -respondents No. 18 and 20 Gird -hari Lal and Puran. However, a decree was passed on 17.5.1996 for delivery of possession of land measuring 5 kanals 12 marlas situated in village Anniawali Tehsil and district Sirsa. Against the afore -mentioned judgment and decree, the judgment debtor -petitioner filed an appeal which was dismissed on 5,9,1997. The execution application has been filed by decree holder -respondents No. 1 and 2 for execution of decree dated 17.5.1996 as upheld by the appellate court. The executing court has issued warrant of possession against the judgment debtor -petitioner and other judgment debtors. The judgment debtor -petitioner filed an application seeking recalling of the warrant of possession on the ground that judgment and decree dated 17.5.1995 in respect of which decree holder -respondents No. 1 and 2 filed an execution application has been challenged by the judgment debtor -petitioner in a suit titled Siri Chand v/s. Jug Lal etc. In that suit, an application under Order XXXIX Rule 1 and 2 read with Sec. 151 of the Code of Civil Procedure, 1908 (for brevity, the code) for staying the implementation of the decree has also been filed. Therefore, it is claimed that the execution of judgment and decree dated 17.5.1996 should be stayed. The Civil Judge after detailed consideration and hearing the rival contentions, dismissed the application and recorded the following order;

(3.) I have heard Sh. K.K. Garg, learned counsel for the judgment debtor -petitioner who has argued that once the judgment debtor -petitioner has challenged the judgment and decree dated 17.5.1996 in a separate suit and also filed an application for staying the execution of the afore -mentioned decree then to proceed with the execution of that decree is unwarranted. He has also pointed out that impositions of exorbitant cost of Rs. 3,000/ - is also illegal. It has been argued that the executing court has committed material irregularity and illegality in exercise of its jurisdiction. Therefore, the impugned order dated 5.1.2002 is liable to be set aside.