ANWAR ALAM Vs. BIBI KHADIJA KHATOON

JUDGEMENT

(1.) THIS application has been filed by a claimant, who had applied under Order 21, Rule 58 of the Code of Civil Procedure and whose case was dismissed by the learned Additional Munsif by his judgment and order dated the 25th August, 1971.

(2.) THE relevant facts are as follows. In 1966, a suit had been filed by the opposite party for evicting the defendants of the suit from the suit premises. THE suit had been decreed in due course on the 12th July, 1968 and the title appeal filed against the decree of the trial Court was dismissed on the 10th October, 1969. A second appeal filed in this Court, numbered as Second Appeal No. 26 of 1970, was dismissed in limine on the 21st October, 1970. It appears, that, before the title appeal had been dismissed, an execution case was levied by the decree-holder on the 23rd September, 1969, numbered as Execution Case No. 16 of 1969. THE present application under Order 21, Rule 58 was filed by the petitioner on the 9th July, 1971. Before the conclusions of the learned trial Judge are mentioned, it may be stated, that, an application under Section 47 of the Code of Civil Procedure had been filed by the aggrieved judgment-debtor, which was dismissed on the 18th January, 1971, and an appeal from that order was also dismissed on the 29th June, 1971. THE learned Munsif has now held, that, the petitioner was fully aware of the institution of the original suit against his brothers for eviction and he had also known of the execution case levied against the judgment-debtors. THE learned Munsif has, on a consideration of the facts and circumstances, held, that, the present petitioner had filed his application under Order 21, Rule 58 only to delay the execution case. THE learned Judge has also held, that, the present petitioner knew of the fate of the application which had been filed under Section 47 of the Code of Civil Procedure. THE learned counsel for the petitioner has argued, that under Order 21, Rule 58 of the Code of Civil Procedure, the Court below was bound to investigate the claim or objection made by his client and that the application could not have been defeated on the ground of delay. THE question of delay has arisen because of a proviso incorporated by this Court in Order 21, Rule 58 (1) of the Code of Civil Procedure, which runs thus: