MOHAN LAL KHEMKA Vs. HARIHAR PRASAD

JUDGEMENT

(1.) This civil revision application is directed against the order dated 7th September, 1996 passed by the 1st Additional District Judge, Munger in Misc. Appeal No. 28 of 1996 whereby and where under the learned Additional District Judge dismissed the appeal and affirmed the order dated 26th June 1996 passed by the Sub-Judge-II. Munger in Misc. Case No. 20 of 1993 who allowed the application filed by the opposite party under Section 144 of the Code of Civil Procedure.

(2.) The undisputed facts in brief are that the petitioner as plaintiff filed T.S. No. 35 of 1962 in the Court of 1st Sub-Ordinate Judge. Munger for declaration of his title in the suit property described in Schedules 1 and II of the plaint and also for realisation of arrears of rent and eviction of the O.P. No. 17, the father of O.P. No. 1. The suit was contested by the opposite party and was dismissed in terms of judgment dated 7th April, 1966. Against the said judgment and decree, the petitioner preferred Title Appellant to of 1966 before the District Judge, Munger which was eventually allowed on 22nd July 1995 by the Additional District Judge v. Munger. Against the judgment and decree passed by the appellate court that father of O.P. No. 1 field appeal in this Court being S.A. No. 173 of 1974. While the second appeal was pending, the petitioner took delivery of possession on 11th July 1976 be executing decree in Execution case No. 6 of 1976. The second appeal which was pending before this Court was ultimately dismissed. The O.P. No. 1 therefore moved to the Supreme Court by filling Civil appeal No. 495 of 1996. The said civil appeal was ultimately allowed by the Supreme Court and the judgment and decree of the High Court and the lower appellate court was set aside and the suit was dismissed by restoring the judgment and decree of the trial court. One more undisputed fact is that after the disposal of the civil appeal by the Supreme Court since the decree was reversed, the O.P. No. 1 because entitled to recover possession of the suit property filed an application under Section 144, C.P.C

(3.) From the perusal of the impugned orders passed by the learned court below, it appears that after the application was filed by the opposite party under Section 144 CPC notices were issued to the petitioner but in spite of knowledge of proceedings, the petitioner did not appear and ultimately an order for restitution of the property was passed against the petitioner and necessary direction was issued for issuance of delivery of possession. After the final order under Section 144, CPC was passed, the petitioner instead of challenging the final order in appeal, filed an application for recall of the final order dated 21.8.93. The petitioner filed another application praying therein that the order dated. 21..8.1993 in the matter of delivery of possession be treated to have been recalled and abandoned. The trial court by the impugned order came to a finding that the petitioner was lingering the restitution of the property by filing applications one after another on technical grounds. The trial court, therefore, ordered for issuance of writ of delivery possession. The said order was challenged by the petitioner in appeal before the District Judge, Munger which was dismissed by the 1st Additional Judge, Munger. The lower appellate court also came to finding that the petitioner, as a matter of fact, is evading delivery of possession of the property in execution of final order dated 21.8.1993 passed under Section 144, CPC