RUKMINI DEVI Vs. PAWAN KUMAR GUPTA

JUDGEMENT

(1.) The decree-holder preferred an appeal against the judgment of Sri Manoranjan Sahay Verma, 1st Additional District Judge, Chapra dated 31st July, 1974 in Miscellaneous Appeal No. 74 of 1972.

(2.) The plaintiff decree-holder filed a suit for specific performance of a contract against Hirdya Narain (defendant No. 1) and Pawan Kumar Gupta (defendant No. 2). The court passed the ex parte decree (Ext. F) against Hirdya Narain. The court directed Hirdya Narain to execute a sale deed within three months from the date of decree provided the plaintiff deposits Rs. 7,300 in court. It also directed that if defendant No. 1 fails to execute the sale deed by 5th July, 1969 then is that case the court shall execute the sale deed in favour of the plaintiff decree-holder. After the passing of the decree, the plaintiff decree-holder applied for execution in execution case No. 12 of 1969. The plaintiff deposited Rs. 7,300 in court. Though plaintiff complied with the direction of the court, Hirdya Narain (defendant No. 1) did not execute the sale deed as per direction of the court. In this circumstance, the court executed the sale deed in favour of the plaintiff decree-holder. Thereafter, the plaintiff decree-holder applied for delivery of possession under Order 21, Rule 35 of the Code of Civil Procedure. The execution court issued the writ of delivery of possession and the Nazir effected the delivery of possession on 3rd April, 1970 (Ext. C/3'). On 1st April, 1970, Pawan Kumar (defendant No. 2) filed a petition under Section 47 of the Code of Civil Procedure and prayed that delivery of possession be stayed. The court by its order dated 3rd April, 1970 stayed the delivery of possession. The concurrent findings of both the courts are that the writ of delivery of possession was served by the Nazir on 3rd April 1970.

(3.) In the objection petition under Section 47 of the Civil P. C., the defendant No. 2 raised several objections to the following effect:--