RASHID MOHD. Vs. KISHORE KUMAR

JUDGEMENT

(1.) The instant writ petition has been filed by the petitioner challenging the order dtd. 8/10/2024 (hereinafter as 'the impugned order') passed by Learned Civil Judge, Sr. Division, Aburoad (hereinafter as 'learned Civil Judge'), whereby the learned Civil Judge has dismissed the application filed by the petitioner herein in Civil Execution Case no. 05/2024 under Sec. 151, Code of Civil Procedure, 1908 (hereinafter as 'CPC'). The instant writ petition has been filed by the petitioner for quashing and setting aside of the impugned order with the following prayer:

(2.) Briefly stated the facts of the case are that the petitioner herein was in possession of the premises in question being a tenant. However, vide judgment and decree dtd. 10/5/2012 (Annex.1) passed by the Civil Judge (Sr. Division), Abu Parvat in Civil Suit No.71/2010 a decree was passed in favour of the respondent no.1 herein (Plaintiff in the said suit) and respondent no. 2 to 4 were directed to hand over the possession of the suit premises to the respondent no.1 herein in terms of the decree. Subsequently, Civil Execution case no.3/2013 was filed by the respondent no.1 herein and the said execution was decided by a compromise between the petitioner herein and the other party on 17/8/2022, wherein the petitioner was directed to vacate the suit premises by 16/8/2024 with condition that in case the premises are not vacated by the petitioner herein, the respondent no.1 would be at liberty to initiate appropriate proceedings before the court in accordance with law. As the said premises were not vacated by the petitioner herein, the respondent no.1, in accordance with the compromise dtd. 17/8/2022, filed Civil Execution Case no.5/2024 before the learned Civil Judge whereby the learned Civil Judge issued possession warrant and in compliance of the same on 12/9/2024, the physical possession of the premises was handed over to the respondent no.1 and also a list of the goods kept in the said premises was prepared. Aggrieved by the same the petitioner herein preferred an application under Sec. 151, CPC for handing over the possession of the premises and the things kept there, which has been taken away from the petitioner. However, the learned Civil Judge dismissed the said application vide the impugned order (Annex.14). Aggrieved by the impugned order, the petitioner has filed the instant writ petition.

(3.) Learned counsel for the petitioner submits that the learned Civil Judge has erred in dismissing the application of the petitioner. He further submits that the proceedings adopted by the executing Court after lapse of 12 years from passing the judgment and decree is illegal and against the provisions of law, because the execution application has been filed on 27/8/2024 which is barred by law of limitation and the learned executing Court has not considered this aspect while issuing the possession warrant.