ABDUL RAZAK Vs. ABDUL HALIM

JUDGEMENT

(1.) This miscellaneous appeal has been filed on behalf of the judgment-debtor and arises out of an execution proceeding going on in the Court of the Additional Munsif-Jamshedpur. for delivery of certain properties.

(2.) On 21-8-1963the Nazir went to effect the delivery of possession, but as it appears from the report, the delivery of possession could not be effected, as the lands were not identifiable On an appli- cation by the decree-holder, on 14-10-1963 a pleader commissioner was appointed to identify the lands, but he also submitted a report, dated 27-1-1964 to the same effect. The pleader commissioner's report was accepted after dismissing the objection of the decree-holder by the executing court.

(3.) On 22-2-1964, the decree-holder applied to the District Judge for transfer of the execution case from the court of the Additional Munsif and the same was admitted and an order of stay of the further proceedings in the execution case No. 18 of 1963 was passed on the same day. It appears that there was some delay in communicating the order of stay and the executing court in the meantime by order dated 24-2-1964 in view of the reports of the Nazir and the pleader commissioner dismissed the execution case on the ground that the decree was unexecutable. Soon after passing of the above order, the stay order was communicated to the learned Munsif. but he merelv recorded an order to the effect that as he had already disposed of the execution case, he had nothing to do in the matter any further and directed for transmission of the record of the case to the court of the District Judge. It further appears that the court of this Additional Munsif was abolished and the matter was ultimately put up after the disposal of the transfer case, which had become infructuous and accordinely dismissed, before another Munsif. The decree-holder made an application under Section 151 of the Code of Civil Procedure for restoration of the execution case. Such a prayer was not made by him before the original Court when the stay order was received by that court. This application has been allowed by an order, dated the 19th March, 1968, by the successor-in-office under the impression that the stay order" would be effective from the moment it was passed and therefore, the order passed by his predecessor on 24-2-1064 had to be taken to be an order passed without jurisdiction and as such, was not operative in the eye of law. He went further and said that as a matter of fact, the said order was not passed in the sense it ought to have been passed mainly due to inadvertence, because had the order of the District Judge been before the Court the execution case could not have been dismissed. Taking this view, the learned Munsif purporting to act under Section 151 of the Code recalled the order, dated 24-2-1964.