BHAGAT RAM Vs. TILAK RAJ AND OTHERS

JUDGEMENT

(1.) By way of this revision petition, the petitioner has prayed for quashing of order, dated 20.03.2007, passed by the learned Executing Court in Execution No. 8 of 2001, vide which an application filed by the petitioner/judgment debtor under Order 21 Rule 32 of the Code of Civil Procedure was dismissed by the learned Executing Court.

(2.) Brief facts necessary for the adjudication of the present petition are that the petitioner before this Court filed a suit for permanent injunction against the father of present respondents, namely, Sh. Duni Chand on the ground that petitioner/plaintiff was owner in possession of land comprised in field Nos. 726 and 727, Khata Khatauni No. 105/122, situated in Pargana Sherpur, Tehsil Dalhousie, District Chamba, H.P., which suit was decreed on 25.11.1999 and defendant therein was restrained from interfering in any manner or raising any sort of construction over the suit land. The judgment and decree so passed by the Court of learned Sub Judge 1st Class, Dalhousie, District Chamba in Civil Suit No. 03.1994, dated 25.11.1999 attained finality. Petitioner herein filed an application under Order 21 Rule 32 to the effect that he had filed a suit for permanent injunction and in the alternative for possession against Sh. Duni Chand, father of judgment debtor, which stood decreed on 25.11.1999. As per the petitioner, after passing of the judgment and decree, respondents had opportunity of obeying the decree, but they did not do so and on 30.04.2001, the judgment debtors/respondents again started interfering in the peaceful possession of the decree holder after the death of Duni Chand. In this background, the following prayer was made in the application so filed before the learned Executing Court:

(3.) The application was resisted by the present respondents, who by way of reply so filed to the application, took a preliminary objection that the application was not maintainable, as the decree stood passed against late Sh. Duni Chand, i.e., their predecessor-in-interest and hence no relief of possession could be given qua them in the execution proceedings. On merit, their stand was that the decree holder was not in possession of the suit land and in fact their father was in possession of the suit land since 1991 and had also constructed a house over the suit land and as decree holder was never in possession of the suit land, therefore, he was not entitled for any relief, as was prayed for in application under Order 21 Rule 32 of the Code of Civil Procedure.