SYED SALAHUDDIN AHMAD Vs. JANKI MAHTON

JUDGEMENT

(1.) The decree-holder has filed this application against an order of Mr. Ramratan Singh, Subordinate Judge, 2nd Court, Patna, dated 26-4-1952, directing that a fresh writ of delivery of possession should be issued on the decree-holder's filing necessary requisites. The learned Subordinate Judge has purported to act under Section 151, Civil P. C., which preserves the inherent rights of the Court. The facts shortly stated, are that in execution of a decree for recovery of possession of certain plots of land a writ of delivery of possession was issued. This was followed by an application by the opposite party who claimed to be in possession of the lands in question, and who objected to the possession being given to the decree-holder. The opposite party, it must be stated at the outset, were no parties to the decree. This objection was rightly rejected. The writ of delivery of possession was returned unexecuted for the second time, and on this occasion also the opposite party filed an objection asking the Court to direct the decree-holder to make an application under Order 21, Rule 97, of the Code of Civil Procedure. The Court directed to get the writ of delivery of possession served by the 5-11-1951. The writ was made over to one Kesho Lal, a process-server, on 28-9-1951, and Kesho Lal made a report to the effect that he had delivered possession on the 30-9-1951, over an area measuring 39.12 acres. It appears that on account of the Puja holidays intervening, the matter was placed before the Court on 6-11-1951, on which date the order records as follows: "5th being holiday case taken up today. Possession delivered. No objection raised." On that very day, the opposite party filed another application stating that the peon had submitted a false report, and that in fact possession had not been delivered, and a prayer was made that the matter be enquired into. There was another prayer to the effect that if on enquiry it was found that the peon had actually delivered possession, then this application of the opposite party should be treated as an application under Order 21, Rule 100, Civil P. C. The Court observed that this petition did not amount to an application under Order 21, Rule 100, Civil P. C., and that if the opposite party so liked, they should file another application making out a case under Order 21, Rule 100. The prayer for enquiry as to whether the writ of delivery of possession had in fact been served or not was allowed, and the relevant papers were directed to be sent to the Inspector of Process-Servers for enquiry and report. It is to be noted in this connection that the judgment-debtor did not object to the delivery of possession. The Court, after perusing the report of the Inspector of Process-servers and after hearing the decree-holder and the opposite party, held that the report of Kesho Lal was false and that he did not deliver possession of the plots on the spot because, in the opinion of the Court and the Inspector of Process-servers, it was not possible for Kesho Lal to have delivered possession over a number of plots measuring 39.12 acres and spread over three miles in area in such a short time as was alleged by the peon; and after having so held, the learned Subordinate Judge directed a fresh delivery of possession to be given.

(2.) In my judgment, the learned Subordinate Judge has acted absolutely without jurisdiction. Section 151, Civil P. C., runs as follows:

(3.) In the circumstances mentioned above, in my judgment, the order complained against is without jurisdiction and must be set aside. The application is accordingly allowed with costs and the order of the learned Subordinate Judge dated 26/4/1952 is set aside. Hearing fee two gold mohurs.