BALRAJ SINGH Vs. AJIT SINGH

JUDGEMENT

(1.) Both revision petition as well as transfer application are being decided by this common order as in both of them, parties are same. S. B. Civil Revision Petition No. 123/2004

(2.) This revision petition has been filed by the petitioners (hereinafter referred to as the decree holders) against the judgment dated 16-1 -2004 passed by the learned District Judge, Sri Ganganagar by which he allowed the appeal filed by the respondent Ajit Singh (hereinafter referred to as the obstructer to the decree in question) and set aside the order dated 14-10-2003 passed by the learned Civil Judge (SD). Sri Ganganagar and directed the learned Civil Judge (SD) to make enquiry under Order 21, Rules 97 to 106, CPC and decide the application filed by the obstructer under the provisions of Order 21, Rule 97, CPC in accordance with law, after giving opportunity of hearing to both the parties.

(3.) It arises in the following circumstances: The decree-holders are the legal and absolute owner of premises of shop No. 84, Gurudwara Road, Sri Ganganagar comprising an area of 21 X 45 sq. ft. and that shop was let out by the decree holders to M/s. Usha International Ltd., a public limited company having its registered office at Surya Kiran Building, 19 Kasturba Gandhi Marg, New Delhi (hereinafter referred to as the judgment-debtor). The decree-holders filed a suit on 6-8-1977 in the Court of Civil Judge, Sri Ganganagar for eviction of the judgment-debtor from the shop in question and that suit was registered as Civil Suit No. 55/77. The said suit was decreed by the learned Civil Judge, Sri Ganganagar through judgment and decree dated 15-5-1980 and the judgment-debtor was ordered to be evicted from the shop in question. Aggrieved from the said judgment and decree dated 15-5-1980 passed by the learned Civil Judge, Sri Ganganagar, the judgment-debtor preferred first appeal before the learned District Judge, Sri Ganganagar, which was transferred to the learned Addl. District Judge No. 1, Sri Ganganagar and that appeal was registered as Civil Appeal No. 77/80 and the learned Addl. District Judge No. 1. Sri Ganganagar through judgment and decree dated 3-12-1988 dismissed the appeal of the judgment-debtor. Aggrieved from the said judgment and decree dated 3-12-1988 passed by the learned Addl. District Judge No. 1, Sri Ganganagar, the judgment-debtor preferred second appeal before this Court being S. B. Civil Second Appeal No. 14/1989 and that second appeal was disposed of by this Court through judgment dated 18-7-2003 on the basis of compromise arrived at between the parties (decree-holders and judgment- debtor). Thereafter, on 7-10-2003, the decree- holders filed an application under Order 21, Rule 35, CPC for taking possession of the shop in question before the learned Civil Judge, Sri Ganganagar and that application was treated as execution application being No. 18/2003. During the execution proceedings, the Executing Court issued a warrant for possession of the shop in question in favour of the decree holders on 7-10-2003, but that warrant could not be executed because of the resistance made by the obstructer. The Nazir of the Court made a report on 14-10-2003 that execution of the decree in question could not be made and possession of the shop in question could not be delivered to the decree holders without the help of the police and therefore, Nazir sought help of the police for executing the decree in question, which was passed in favour of the decree holders. Not only this, Nazir in his report further observed that when he went to take possession of the shop in question, that was resisted by obstructer and one Bhajan Singh. Apart from this, the decree holders also moved an application on 14-10-2003 seeking police help as the obstructer was making resistance in the execution of the decree in question. On the same day i.e. on 14-10-2003, an application under Order 21, Rule 97 CPC, was filed by the obstructer before the learned Civil Judge, Sri Ganganagar stating interalia that he was the owner of the shop in question and the possession of the shop in question was with him for the last 12 years and therefore, enquiry be got conducted as provided in Order 21, Rule 97 onwards of CPC. On the application of the obstructer dated 14-10-2003, the Court did not pass any order and it was posted for passing orders on 1-11-2003, but in execution file, an order was made by the Executing Court on 14-10-2003 that for execution of decree in question, police help be sought and issued a fresh warrant of possession in favour of the decree holders. Aggrieved from the order dated 14-10- 2003 passed by the Executing Court (learned Civil Judge (SD), Sri Ganganagar) ordering to take police help for execution of decree in question and treating that his application under Order 21, Rule 97 CPC was deemed to have been dismissed, the obstructer has filed an appeal being No. 80/03 before the learned District Judge, Sri Ganganagar and that appeal was allowed by the learned District Judge, Sri Ganganagar through judgment dated 16-1-2004 and set aside the order dated 14-10-2003 passed by the Executing Court (learned Civil Judge (SD), Sri Ganganagar) and directed the Executing Court to make enquiry under Order 21, Rules 97 to 106 CPC and decide the application filed by the obstructer under the provisions of Order 21, Rule 97 CPC in accordance with law, after giving opportunity of hearing to both the parties. Aggrieved from the said judgment dated 16-1-2004 passed by the learned District Judge, Sri Ganganagar, the decree holders have preferred this revision petition.