UTMA RAM Vs. NIRMLA DEVI

JUDGEMENT

(1.) THE two miscellaneous appeals and one criminal revision arise out of same transaction, which has led dispute between the parties. Hence they are being decided by a common order.

(2.) BRIEFLY stated the dispute arose out of an agreement to sell agricultural land executed by Utma Ram, defendant in favour of Nirmla Devi, plaintiff. The vendor having failed to execute sale-deed in favour of Nirmla Devi Nirmala Devi instituted a civil suit for specific performance of agreement against Utma Ram in Jan. 1986. It was alleged by her that she was put in possession of the suit property under the said agreement and her possession be protected from interference by defendant by grant of a temporary injunction under Order 39 Rule 1 & 2. A temporary injunction was granted in her favour on 30th Oct. 1986. It may be noted that defendant had not put in appearance at the time when the temporary injunction was granted against him and the suit was ultimately decreed ex-parte on 30th Feb. 1987. Somewhere in 1988 the plaintiff decree-holder applied for execution of decree. In Dec. 1988, plaintiff Nirmala Devi also moved an application under Sec. 145 of the Criminal Procedure Code apprehending breach of peace in connection with the possession of the suit property as a result of which the suit property was attached and handed over to receiver on 24. 2. 89. During this period in Jan, 1989, defendant Utma Ram having come to know about the ex-parte decree against him moved an application for setting-aside the said ex- parte decree. The ex-parte decree was set-aside by the order of the trial court dt. 27. 9. 89, and revision against the said order was also dismissed by this court on 4. 10. 90.

(3.) AFTER the order dt. 5. 9. 91 was passed, the defendant moved another application under Order 39 rule 4 CPC read with Sec. 151 for discharging of interim order dt. 30. 10. 86 which was held to be operative by the trial court's order dt. 5. 9. 91. This application of the defendant was rejected by holding that the order dated 5. 9. 91 which was passed after hearing both the parties is in fact, an order confirming order dt. 30. 10. 86 and in that view of the admitted position, that the present possession of the suit property is with plaintiff since the same was delivered to her by the receiver, the prima facie case in favour of the plaintiff is proved. The court also observed that the finding given in proceedings under Sec. 145 Cr. P. C. are not binding on the Civil Court and therefore defendant cannot derive any benefit out of the same. In view of this the application of Utma Ram under Or. 39 rule 4 CPC was also dismissed on 10. 7. 92 which is subject matter of Civil Miscellaneous Appeal No. 325/92.