JOGINDER PAL Vs. BASAMBHARI DEVI

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India, has been filed by the petitioners, against the order dated 194.2005 passed by the Additional District judge, Ghumarwin.

(2.) The facts which are relevant for the decision of the present petition are that claiming disobedience to the decree dated 24.10.1978 passed by the trial Court, the D.H., namely Smt Basambhari Devi filed applications under Order 21 Rule 32 read with Section 151 CPC against the judgment debtors Joginder Pal etc. The said application was contested by the judgment debtors. After hearing both sides, the learned executing Court (Sub Judge 1st Class Ghumarwin) dismissed the said application, vide order dated 19.6.2003, holding that the decree holder and miserably failed to establish that the judgment debtors had defied the decree dated 24.10.1998 by encroaching upon a portion of the suit land. Aggrieved against the same, the decree holder filed appeal before the learned Addl. District Judge. It was submitted on behalf of the judgment debtors that no appeal against the order dated 19.6.2003 passed by the executing Court was maintainable. However, the learned Addl. District Judge after hearing both sides held that the appeal filed by the decree holder was very much maintainable. Therefore, after hearing both sides, the learned Addl. District Judge, vide judgment dated 19.4.2005 allowed the appeal, set aside the order of the executing Court and ordered and judgment debtors to be detained in civil prison for a period of two months and also ordered the attachment of their property till they stopped the interference, holding that they had wilfully disobeyed the decree dated 24.10.1998. Aggrieved against this judgment dated 19.4.2005 passed by the learned Addl. District Judge, the judgment debtors filed the present petition under Article 227 of the Constitution of India in this Court.

(3.) At the time when the petition came up for hearing before me on 31.8.2005. it was submitted before me by the learned counsel appearing for the petitioners judgment debtors that no appeal against the order dated 19.6.2003 passed by the executing Court was maintainable and that the learned Addl. District Judge had illegally held that the order passed by the executing Court was appealable. Resultantly, notice was issued to decree holder respondent No.1 and the records were also ordered to be requisitioned.