MANOHAR LAL Vs. KUSUM LATA MALHOTRA AND ANOTHER

JUDGEMENT

(1.) This appeal is directed against the order dated 1.7.2015 rendered by the Additional District Judge (II), Shimla in Execution Petition No.35-S/10 of 14/2009.

(2.) "Key facts" necessary for the adjudication of this appeal are that the judgment and decree dated 21.1.2009 was passed in Civil Suit No.4-S/1 of 2008 in favour of respondent No.1 and against the defendant. The decree holder filed Execution Petition bearing No. 35-S/10 of 14/2009 before the Additional District Judge, Shimla for the execution of judgment and decree dated 21.1.2009. The appellant also filed an application under Order 21, Rule 97 read with section 151 of the Code of Civil Procedure. The decree holder also filed an application under sections 94 and 151 of the Code of Civil Procedure to provide police assistance for taking over the possession. The Executing Court has dismissed the application preferred by the appellant under Order 21, Rule 97 read with section 151 of the Code of Civil Procedure on 1.7.2015 and allowed the application preferred by the decree holder under sections 94 and 151.

(3.) The appellant has precisely contended in his application preferred under Order 21, Rule 97 of the Code of Civil Procedure that judgment debtor was missing since first week of Nov., 2007. Report to this effect was lodged with the Police Station (West), Shimla on 16.12.2007. His whereabouts were not known. Sale deed dated 11.2.2015 was also in nullity. Devi Saran was an agriculturist and had no source of income except the ancestral/coparcenary property. The possession of Devi Saran and other legal heirs could not be disturbed.