JAI PRAKASH Vs. KHIMARAJ

JUDGEMENT

(1.) This revision petition has been filed against the order of the learned Munsif and Judicial Magistrate, Desuri dated 20-8-1988 whereby the learned Munsif has rejected the application filed u/S. 151, CPC.

(2.) The facts necessary to be noticed for the disposal of this revision petition briefly stated are : that the non-petitioner-decree holder Khimraj obtained a decree for arrears of rent and ejectment against the non-petitioner No. 2 judgment debtor Smt. Shanti Devi on 1-6-1979, which was later on confirmed in appeal on 23-2-1983. Thereafter, the decree-holder Khimraj filed an execution application for execution of his decree and on that application, warrant of possession was issued by the Executing Court. Since the petitioner was in possession of the disputed property, he obstructed the execution of the decree. A note to this effect was made on the warrant of possession by the Sale Amin that the petitioner was obstructing the execution of the decree and was residing there as a tenant. Thereafter, the petitioner filed an application before the Executing Court under O. XXI, R. 97 CPC on 28-5-1984 and the application came to be dismissed on 1-6-1984 as it was not maintainable.

(3.) It is alleged that on 7-7-1984, the decree-holder Khimraj filed an application that since the petitioner is resisting the execution of the decree, the warrant of possession may be executed against him as well. The learned Executing Court, after hearing both the parties, ordered on 1-8-1984 that since the decree-holder could not satisfy the Court that the petitioner has been residing as a sub-tenant the allegations contained in application under O. XXI, R. 97, CPC requires an enquiry and, therefore, the application filed by the decree-holder on 9-7-1984 for issuing warrant of possession against the petitioner was dismissed and the case was posted for reply of the petitioner. The petitioner filed his reply to the application under O. XXI, R. 97, CPC. On 16-5-1987, the case was ordered to be posted for the evidence of the decree-holder and the objector-petitioner. However, on 19-8-1987, the decree-holder filed an application stating therein that he does not want to proceed with the execution and further requested that he does not press his application under O. XXI, R. 97, CPC. On this application, the Executing Court ordered on 19-8-1987 that since the decree-holder himself does not want to proceed with the application, therefore, there is no justification for proceeding with the execution. The application was dismissed and the file was ordered to be considered to the record.