SHYAM SUNDER Vs. DEVI SINGH

JUDGEMENT

(1.) THE first revision petition has been filed against the orders of the learned Munsif, Jodhpur City dated August 12, 1988 and December 20, 1988. By the first order, he has dismissed the application of the judgment debtor -petitioner dated August 3, 1988 praying for not issuing warrant for the delivery of possession against him. By the second order, the review application dated August 26, 1988 has been dismissed. The second revision petition has been filed against the order dated April 21, 1989 by which the learned Munsif has rejected the application of the defendant -petitioner moved in Original Suit No. 97/78 for not amending the decree in compliance with the said order dated August 12, 1988 The facts of the case giving rise to these revision petitions may be summarised thus.

(2.) SUIT No. 97/78 was filed by the pLalntiff -non -petitioner Devi Singh against the defendent -petitioner Shyam Sunder for the recovery of arrears of rent and ejectment on the grounds of defaults in payment of rent and subletting of the demised premises to sub -tenant Mohanlal. The demised premises consists of a plot situated in Bhandari Building, 1st 'A' Road, Sardarpura, Jodhpur. The Sub -tenant Mohanlal further sub -let a part of it to Bal Chand. Mohanlal sub -tenant and Bal Chand were not impleaded in the suit. After obtaining several adjournments on the ground that talks of compromise were going on in between the parties, the defendant ultimately expressed not to file his written statement. After recording the evidence of the pLalntiff, the suit was decreed on November 29, 1978. On November 14, 1979, an execution application was moved for obtaining the possession of demised plot. On October 4,1989, one Gangaram moved an application, Papers No. B8/2 -5, Under Section 151, CPC stating that he and his brothers are in possession of the suit plot in their own rights and praying that the decree -holder be not allowed to dispossess them in execution of the warrant for delivery of possession. After taking the repply of the decree -holder and bearing the parties the application was dismissed on March 31, 1981. In this Court, the Civil Revision Petition No. 174/81 was filed by Gangaram. It was dismissed on October 20, 1983. Thereafter, suits No. 443 and 463 of 1983 for injunction were filed by Gangaram and sub -tenant Bal Chand along with applications Under Order 39 Rules 1 and 2, CPC. These applications were dismissed by the learned Munsif, Jodhpur City by his orders, paper No. A -18/17 -26, dated July 20, 1987. Appeals No. 41 and 42 of 1987 were filed by Gangaram and Bal Chand and they were dismissed on June 2, 1988 vide judgments, papers No. A -18/10 -12 and A -18/13 -16. Review petitions were filed against the juegments dated June 2, 1988. and they were dismissed by orders, paper No. A -29/2 -11, dated June 3, 1989. Civil Suit No. 361/88 was filed by Murlidhar, brother of judgment -debtor Shyam Sunder, along with an application Under Order 39 Rules 1 and 2, CPC. It was dismissed on May 24,1989, vide order papers No. B -2O/I -8. Thereafter, suit No. 40 of 1989 was filed by Bali Bai, mothor of the judgment -debtor, along with an application Under Order 39 Rules 1 and 2, CPC, Bal Chand filed Civil revision No. 292/89 against the order dated June 2, 1981, dismissing his appeal filed against the said order dated June 2, 1988. The revision petition was dismissed by this Court by its detailed order dated October 16,1989. On January 19,1984, the judgment -debtor Shyam Sunder filed objections Under Section 47, CPC. After bearing the parties, they were dismissed by the executing court by its order dated August 2, 1988, papers No. A16/1 -3. On August 3, 1988, the judgment -debtor moved a fresh application raising objection against the execution of the decree on the ground of mis -description of the suit plot in the decree. The decree -holder Devi Singh filed his reply on August 4, 1988. The juegment -debtor did not file its rejoinder. After hearing the parties, the Executing Court dismissed the judgment -debtor's application dated August 3, 1988 and directed the amendment of the decree under execution relating to description of the Suit plot by its order dated August 12,1989, under revision. On August 26, 1988 the judgment -debtor moved an application for reviewing the order dated August 12, 1988. It was dismissed by order dated December 20, 1988 under revision, The same day the judgment -debtor moved an application paper No B -17/1 -3, under reckon 151, CPC in the original suit for not carrying out the amendment of the decree in pursuance of the order dated August 12, 1988, without hearing him. This application was dismissed and the decree was amended by exchanging the northern and southern boundaries of the suit plut by order dated April 21, 1989, challenged in Civil Revision No. 269/89.

(3.) IN reply, it has been contended by the learned Counsel for the decree -holder -non petitioners Devi Singh that the revision petition are not maintainable, no illegality or material irregularity in the exercise of jurisdiction has been committed by the executing court and the orders, if allowed to stand, would not occasion failure of justice or cause irreparable injury to the judgment -debtor -petitioner Shyam Sunder as admittedly he is not in possession and occupation of demised plot. He also contended that revision petition No. 206 of 1989 filed against the order dated August 12, 1988 is time barred, filing of the review petition and its subsequent dismissal did not enlarge the limitation and no application for condonation of the delay has admittedly been moved. He further contended that the objections of the judgment -debtor petitioner were rejected by the executing court by its order dated 2nd August. 1988 and the subsequent application dated August 3, 1988 containing one of the earlier objections regarding the misdescription of suit plot was barred Under Section 11, CPC. He relied upon Smt Pushpa v. Ganpat Singh [1977 WLN 248]. He also contended that the executing court has jurisdiction to correct the decree and he relied upon Ganesh Prasad Agarwalla v. Manohar Lal Muilick and Amr [AIR 1940 Calcutta 202], Ganesh v. Sri Ram Lalaji Maharaj Birajman Mandir and Ors. AIR 1973 All 166 (FB), Smt. Vidyavati Bai v. Smt. Parkash Vati Devi and Anr. : AIR1976Delhi275 ], Rania v. Smt. Kamla Devi and Anr. and Shankergouda v. Garangouda and Ors. [AIR 1976 Karnataka 204]. He further contended that all the orders under revision, were passed after hearing the learned Counsel for the judgment -debtor -petitioner Shyam Sunder at length and there was no necessity of giving a notice for the amendment of the decree when the judgment -debtor himself appeard and moved an application seriously objecting the amendment of the decree.