SHANKER KUMAR CHOUDHARY Vs. INDRADEO YADAV

JUDGEMENT

(1.) Heard Mr. Ramesh Kumar Choudhary, learned counsel for the petitioners and Mr. Bimlendu Mishra, learned counsel appearing for the decree holder-sole opposite party. This Civil Revision application is directed against the order dated 3.2.2009 passed by learned Sub-Judge-1st, Bhagalpur in Title Execution Case No. 4 of 2003, whereby the learned court below has been pleased to allow the application filed by the decree holder-opposite party under Order 21, Rule 32 of the Code of Civil Procedure (hereinafter referred to as the 'Code') and directed the judgment debtor-petitioner to deposit cost quantified at Rs. 3433.50 to the decree holder as also to deliver the possession of the suit property to him and his failure to do so would entail civil imprisonment for a period of seven days.

(2.) The facts of the case briefly stated is that the suit in question was filed by the plaintiff-opposite party seeking, inter alia, a relief of perpetual injunction prohibiting the defendant-petitioner from evicting him from the suit premises except only after following the due process of law. It is the case of the decree-holder that despite notices validly served, the judgment debtor did not appear leading to an ex parte judgment and decree passed on 17.6.2003/27.6.2003 decreeing the suit in favour of the plaintiff and by a decree in the nature of prohibitory injunction, the judgment debtor was restrained from evicting the plaintiff except by due process of law. The further case of the decree holder is that the judgment debtor failed to observe the decree of injunction and put a lock in the premises on 18.8.2003, following which the Execution Case No. 4 of 2003 was filed on 27.8.2003. An amendment was prayed by filing an application in this regard on 18.7.2004 placed at Annexure-4 and which was contested by the judgment debtor but was allowed on 4.9.2004. By the said amendment the decree holder sought to incorporate a prayer for restoration of possession. The matter being contested at the level of the execution court, the order impugned was passed requiring the judgment debtor to discharge his obligation and hence the present application.

(3.) On the facts noted, two issues arises for consideration in the present case and which are as follows:--