DHANRAJ AND ORS. Vs. SUNITA

JUDGEMENT

(1.) CHALLENGE in the present revision petition filed against the defendants is to the order dated 03.09.2011 (Annexure P -1) whereby, the Additional District Judge, Rewari in appeal has affirmed the order dated 14.06.2011 passed by the Civil Judge (Sr. Divn.), Rewari who had dismissed the application of the petitioners under Order 9 Rule 13 CPC. The setting aside of the ex parte decree dated 08.10.1992, thus, has been rejected which was for permanent injunction.

(2.) A perusal of the paper book would go on to show that suit for permanent injunction was filed on 09.10.1991 by the respondent -petitioner alongwith others restraining the present petitioners from raising construction on the property in question on the ground that the plaintiffs were owners of the suit property and the present petitioners wanted to take possession illegally. The petitioners were proceeded against ex parte on 17.07.1992. The said plaintiffs examined as many as 4 witnesses and the Court after examining the revenue record, came to the conclusion that the plaintiffs were owners and accordingly, decreed the suit on 08.10.1992 (Annexure P -2). The petitioners filed objections to the application filed under Order 21 Rule 32 CPC dated 07.08.2003 (Annexure P -3) and never chose to file an application for setting aside of the ex parte decree or the ex parte proceedings. The Executing Court allowed the objections on 17.12.2008 (Annexure P -5) and dismissed the execution proceedings by holding that they were owners in possession and the decree holder had never remained in possession. This Court in C.R. No. 705 of 2009 filed by the respondent under Article 227 of the Constitution of India set aside the said order on the principle that the Executing Court could not go behind the decree and could not record a finding contrary to the one recorded by the Civil Court and rejected the contention that the execution was time barred. The application of the respondent under Order 21 Rule 32 CPC was allowed and the petitioners were directed to hand back the possession, failing which, they would be liable to be sentenced for civil imprisonment and costs of Rs. 25,000/ - were also imposed. The relevant observations of order dated 10.09.2010 (Annexure P -7) read thus: -

(3.) THE decision of this Court dated 10.09.2010 was challenged in the Apex Court wherein, there was interim stay and thereafter on 16.12.2010 (Annexure P -9) in view of the application having been filed under Order 9 Rule 13 CPC, SLP No. 29501 of 2010 was dismissed as withdrawn. The order reads thus: -