DALEL SINGH Vs. BRIJ LAL

JUDGEMENT

(1.) THE revision is against the order dismissing an application for delivery of property pursuant to a decree for specific performance which was obtained. It appears that when the decree was sought to be executed and warrant of possession was issued and an objection had been taken by some of the judgment -debtors that there has to be some statutory rights against being evicted and sought for rejection of the execution petition. The warrant was issued. It appears that against the order of the Executing Court, an appeal had been filed to the District Court and the appellate Court upheld the objection and dismissed the decree for possession on an observation that only symbolic possession could be taken by the decree -holder. There had been a revision against this order to this Court, but by that time, the decree -holder appeared to have withdrawn the execution petition for delivery and consequently, the revision was disposed of as having become infructuous. The revision was, therefore, treated as withdrawn and the decree -holder filed a fresh petition for delivery. Now, the Executing Court dismissed it holding that already the District Court had passed an order directing only symbolic possession and, therefore, warrant of possession could not be issued. It is this order which is in challenge in revision. A decree passed for specific performance that also contained the relief of recovery of possession ought to have been pursued by the Court and the Court could not have been fettered itself to the power to deliver possession unless the decree itself directed that only symbolic possession was to be given. If the obstruction to possession was at the instance of a 3rd party as the tenant, then it was possible for a contention that only symbolic possession could be given without offending the statutory rights of security of tenure for persons, who were not parties. However, if a decree for possession was granted against the defendants, some of whom were claiming rights of tenancy, if such a plea had not been taken in defence, then the same could not have been taken at the stage of execution. Such an objection would be barred by constructive res judicata under Section 11, Explanation IV CPC.

(2.) THE Executing Court could not have also felt itself bound by the directions of the District Court since the order passed by the District Court was wholly without jurisdiction. An order of the Executing Court either admitting execution or rejecting the same rendered between parties shall be taken as an order passed under Section 47 CPC and it cannot be a subject of appraisal in a regular appeal. It was a case of complete lack of jurisdiction and not merely an error in procedure that could be corrected. The order passed by the District Judge holding that symbolic possession must be given was a non -est order, that would not required to be complied with by the Executing Court. The order dismissing the execution petition filed by the decree -holder for delivery was, therefore, not tenable. The impugned order is set aside and the civil revision is allowed with costs. Counsel's fee Rs. 5,000/ -. The Executing Court shall take further process in execution and deliver possession of the property to the decree -holder.