VIJAY KUMAR GUPTA Vs. HARI NARAYAN RASTOGI

JUDGEMENT

(1.) THIS Civil Revision application is directed against the order dated 28.2.1998 passed by. Subordinate Judge I, Bhabhua, in Execution Case No 3 of 1986 whereby he passed the order for delivery of possession after partitioning the suit property in the facts and circumstances of the case.

(2.) BRIEF facts of the case relevant for the purpose of deciding this case is that Opposite party nos.1 and 2, Hari Narayan Rastogi and Prabhu Narayan Rastogi, who are own brothers filed Title Suit No. 74 of 1965 against Opposite Party nos. 3 and 4 for declaration that various sale deeds dated 5.2.1965 were illegal and not binding on the plaintiffs. Plaintiff -Opposite party nos. 1 and 2 prayed for a decree for recovery of possession of the properties. In the said suit the grand father of Opposite party nos. 1 and 2 was also a coplaintiff. The suit was decreed in terms of the judgment dated 29.4.1972 by the Additional Subordinate Judge, Sasaram and defendant nos. 1 and 4 were directed to deliver possession of the suit properties in favour of the plaintiffs -Opposite party nos. 1 and 2. The defendants -Opposite party filed First Appeal No. 527 of 1972, but the said appeal was finally dismissed on 7.11.1985. After decree was affirmed in appeal, one of the plaintiffs -decree holders, namely, Hari Narayan Rastogi (Opposite party no. 1) levied execution Case No. 3 of 1986 for recovery of suit property which is a house together with land measuring total area of four decimals. It appears that during the pendency of the execution case, the codecree holder Prabhu Narayan Rastogi transferred 11/2 decimal of suit property to the petitioner and on the basis of the said purchase the petitioner said to have come in possession of the suit property. The petitioner then filed an application in the execution case for impleading him as a party and the court below by order dated 5.12.1992 added him as party in the execution case. After the petitioner was impleaded as party he filed an application in the execution case claiming that he is in possession of the suit house and, therefore, only symbolic possession should be effected in execution of the decree. However, after hearing the parties the court below by order dated 7.1.1993 ordered that the possession of the purchaser -petitioner should not be disturbed in the .process of the execution. The decree holder -opposite party then filed a petition in the Executing court praying for delivery of possession over 0.2 decimals of land towards western side out of the 0.4 decimals of land. The court below allowed the prayer and appointed pleader commissioner for delivery of possession to the decree holder over 0.2 decimals of the suit land towards western side. However, the pleader commissioner reported that the petitioner is in possession of major portion of the land and house which he is not entitled to because he has purchased unspecified 1 1/2 decimals of land. So possession of the judgment -debtor has to be disturbed otherwise the decree will not be executed. It was also reported by the pleader commissioner that the judgment debtor was running two shops in two rooms over the suit land. Learned court below after hearing both the parties on the report of the pleader commissioner and with their consent the impugned order was passed in the following terms: ''It may be mentioned here that the purchaser (judgment debtor) has purchased only Dec. land including the construction in the suit land from co -decree holder but no specification of the property has been given in the sale deeds. As per report of the commissioner, Vijay Kumar Gupta is in possession over the major portion, of the suit land which he is not entitled to because he has only purchased Dec. of land. So the possession of the judgment debtor has to be disturbed otherwise the decree will not be executed. I am afraid to interfere in the order of the Hon 'ble High Court but in my opinion, no option is left to this Court but to disturb the possession of the judgment debtor. After all he is only entitled to the proportionate possession over the suit land within the valuation of 1/2 dec. of land and not beyond that. During the course of argument, a suggestion was given by the court to partition the suit land including the house standing thereon 1/2 and 1/2 because as per decree, the decree holder is entitled to f/2 possession i.e. 2 Dec. of land in question. The learned advocates of both the sides also conceded. In the circumstance and for the end of justice and to put the litigation to end for ever, let the suit land be partitioned between the decree holder and the judgment debtor. Accordingly the pleader commissioner is directed to assess the valuation of the entire suit land and to make partition 1/2 and 1/2 and to put the decree holder in possession over 2 Dec. of land including the house standing thereon. The commissioner is directed to deliver possession of the suit land and the house over 2 Dec. to the decree holder and submit his report within fortnight. In case of necessity, he can take the help of police. ''

(3.) FROM the facts stated hereinabove, it is admitted position that a joint decree was obtained by the plaintiff -Opp. party nos. 1 and 2 for recovery of possession of the suit properties from the defendant -opposite party. Thereafter one of the decree holders, namely, Opposite party no. 1 -Hari Narayan Rastogi levied execution case for recovery of possession of the entire suit properties from the defen -dants -judgment debtors which is permissible in law. At this stage it is worth to quote Order XXI, rule 15 of the Code of Civil Procedure : - ''15. Application for execution by joint decree -holder. - Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary apply for the execution of the whole decree for the benefit of them all, or where any one of t ' ,m has died, for the benefit of the survivors and legal representatives of the deceased. (2) Where the court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interest of the person who have not joined in the application ''.