GANGA RAM Vs. DEVI SINGH

JUDGEMENT

(1.) This revision is directed against the order dated 31-3-1981, passed by the Munsif City, Jodhpur, in execution case No. 103 of 1979, whereby the petitioner's application under Section 151. C.P.C., dated 4-10-1980 was rejected and it was ordered that warrant of possession be issued against the judgment-debtor in compliance of the court's previous order dated 3-10-1980.

(2.) I may state a few relevant facts giving rise to the present revision petition.

(3.) The decree-holder Devi Singh had obtained a decree for arrears of rent and ejectment against the judgment-debtor Shyam Sunder from the disputed premises on 29-11-1978 in Civil Original Suit No. 97 of 1978. The execution application was submitted by the decree-holder, in which warrant of possession was issued. The warrant of possession returned unexecuted and on 28-1-1980, the Sale Ameen reported that the judg-ment-debtor was not found at the spot. Gangaram, the present petitioner and one Mohatilal were found at the spot, to whom the warrant of possession was read over and they were asked to hand over vacant possession, but they refused and they stated that they are not bound by the decree and there is none thereby the name of Shyam Sunder. It was also reported that on the plot in question there existed work shop of wooden furniture and a number of labourers were working there. It was also reported that there is likelihood of breach of peace at the spot. The Sale Ameen prayed for police aid for execution of the warrant. On 25-9-1980 the decree- holder presented an application under Section 151 I.P.C. in which he stated that Mohanlal and Gangaram, the men of the judgment-debtor were present at the spot, who refused to deliver possession and are out for breach of peace, so the decree-holder prayed that the decree may be got executed with the police aid and necessary orders in that connection be passed. On the report of the Sale Ameen and on the application of the decree-holder on 3-10-1980, the Court passed an order that a letter may be issued to the Superintendent of police, Jodhpur, to provide police aid to the Assistant Nazir for execution of the warrant of possession under Order 21. Rule 35. C.P.C. on 4-10-1980 the present petitioner Gangaram submitted an application that he and his brothers are in independent possession of the disputed premisses and they resisted and obstructed the delivery of possession when the Sale Ameen went to execute the decree. The decree was obtained collusively against the judgment-debtor. The decree-holder ought to have moved an application under Order 21, Rule 97. C.P.C. and without adjudication of the petitioners' right, they cannot be ousted. It was prayed that the order for providing police aid may be recalled and execution of decree with police aid be also stayed. An affidavit was also filed by the petitioner in support of the application. The decree-holder submitted r"-ply to the application on 24-10-1980. in which he denied the right, title and interest of the petitioner and stated that the petitioner did not mention as to how the petitioner and his brothers are in possession of the plot in question. The averment of the petitioner is vague. The petitioner is in collusion with the judgment-debtor and the application, is not made bona fide. It was prayed that the application of the applicant Gangaram be refected and the decree-holder may be put into possession by force. An affidavit of Dalip Singh was filed along with the reply. The learned Munsif, after hearing the parties, rejected the application and ordered for police aid for execution of the warrant of possession.