AJIT KAUR Vs. MANDIR JHOK HARI HAR

JUDGEMENT

(1.) This revision petition is directed against the order of the executing court whereby the objections filed under S.47 of the Code of Civil Procedure by the judgment-debtor objectors were accepted and it was held that symbolic possession was delivered to the decree-holder in full satisfaction of the decree passed in her favour.

(2.) The undisputed facts are that the petitioner along with another filed a suit for possession of the disputed land on the ground that they were tenants at will paying yearly rent of Rs. 834/- and were entitled to remain as such (as tenant at will) until ejected in due course of law in accordance with the provisions of the Punjab Security of Land Tenures Act. It was pleaded that defendants Nos. 1, 2 and 3 conspired together and took illegal possession of the land during the absence of the plaintiffs. The suit was decreed by the learned Subordinate Judge and the judgment was affirmed in appeal by the learned first Appellate Court. On second appeal by the defendants, this Court had held that the plaintiff and defendant No. 6 in the suit were entitled to be restored the possession of the disputed land and the decree of the courts below in so far it directed restoration of the possession to the plaintiff and defendant No. 6 was maintained unless they were evicted in due course of law. The judgment of this Court is reported as Mandir Jhoke Hari Har v. Smt. Ajit Kaur, 1977 Pun LJ 315.

(3.) The plaintiffs, who are petitioners, levied execution of the decree ultimately affirmed by this Court. Warrants of possession were issued and from the copy of the report roznamcha exhibit O1, it is revealed that symbolic possession of the land was delivered to the decree-holder as the land was under crops and gairmumkin. The execution application was dismissed in default on February 17, 1978 and the file was consigned to the record-room presumably after the receipt of warrants of possession. The decree-holder moved a second execution application on March 1, 1978. The learned executing Court issued notice to the judgment-debtors and they filed objections purporting to be under S.47 of the Code of Civil Procedure. It was pleaded by them that the decree-holder was delivered symbolic possession with her consent and she appended her signature on the roznamcha vakiyati dated October, 13, 1977 and the first execution application was dismissed on February 17, 1978. Since the decree-holder has been delivered symbolic possession as agreed to by her in execution of the decree passed in her favour, she is not entitled to file second execution application. The learned executing court framed the following issues : -