BHERA Vs. NETA

JUDGEMENT

(1.) This is an appeal arising out of certain execution proceedings which were taken in the court of the S.D. O., Sojat. In the course of the execution proceedings the learned S. D. O. directed on 25.11.1955 that the appellants be detained in the civil prison for a period of 5 days in order to enable the decree -holder to obtain possession of the land in dispute and a warrant of arrest be issued against them. Aggrieved by the order of the learned S. D. O. the appellants went up in appeal to the learned Additional Commissioner, Jodhpur. After controverting the contentions raised on behalf of the appellant the learned Additional Commissioner came to the conclusion that the decree passed by the learned S. D. O. was not incapable of execution on account of vagueness. The fields in dispute could be clearly identified from the description which was given in great detail in the plaint filed by Neta respondent and in the judgment which followed upon it. The defendants, in the original suit have filed a second appeal in the Board impugning the propriety and legality of the order of the Additional Commissioner, dated 3.5.1936 and that of the S. D. O., dated 25.11.1955.

(2.) We have heard the learned counsel appearing for the parties and have also examined the record. The facts which are relevant to the decision of this appeal lie within a short compass and may be briefly stated as follows : - -Neta decree -holder, applied to the learned S. D O. Sojat on 10.12.1955 for execution of the decree passed in this favour. On 15.9.1955 the learned S. IX O., issued a warrant for possession over two fields as well as for the amount of compensation which had been decreed against the judgment -debtors. The warrant was entrusted to Sowar Johar Singh for execution. He went to the spot and in the presence of a few respectable persons delivered possession of the fields in question to Neta, decree -holder, on 3.10.1955. He recorded a memorandum from which it is abundantly clear that possession of the fields in dispute was given to the decree -holder, though the judgment -debtors did not appear inspite of being called repeatedly to the spot. The warrant was returned to the court concerned after execution. On 6.10.1955 the learned S. D. O. recorded an order that though possession over the fields in dispute had been given to the decree -holder he had failed to furnish a receipt indicating that he had received possession over the fields in dispute. He was, therefore, directed to appear before the court on the next date of hearing. On 16.9.1955 the judgment -debtors filed an application before the learned S. D. O. requesting him to stay execution proceedings because the decree which had been passed was incapable of execution as it did not contain a description of the fields in dispute and so long as their identity was not clearly determined possession over the fields could not be delivered to the decree -holder. The learned S. D. O. rejected the application on 10.11.1955 on the ground that the objection raised in it was clearly untenable. An application was presented by the decree -holder on 12.10.1955 alleging that though the Sowar, who had been entrusted with the execution of the warrant, had asked him to take possession of the fields in dispute he had not done so. After the process -server had left he went to plough the fields in dispute and the judgment -debtors did not permit him to do so. He had, therefore, not furnished any receipt to the process -server in token of his having taken over possession of the fields in dispute. He requested the court to issue another warrant. The learned S. D. O. passed an order to that effect. The Amin who went to the spot in order to execute the warrant, submitted a report that the fields in dispute had been ploughed over for a couple of days by the decree -holder when they went to the fields on 12.11.195 5 in order to sow a crop, they were driven out by the judgment -debtor and other persons. On this report the learned S. D. O. directed on 25.11.1955 that as the judgment -debtors were willfully obstructing delivery of possession they be detained in the civil prison for a period of 5 days.

(3.) A preliminary objection was taken by the learned counsel for the respondents that no appeal lay against the order of the S. D. O., dated 25.11.1955, much less a second appeal. The learned counsel for the appellants invited our attention to the provisions of secs. 47 and 2 (2) of the C. P. C. The latter section provides that a decree shall be deemed to included the determination of any question within sec. 47. The relevant portion of sec. 47, C. P. C. runs as follows: - - "All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit." The point which falls for determination is whether an order passed by the learned S. D. O. on 25.11.1955 amounted to a decree. It cannot be gainsaid that this order relates to the execution of the decree and falls within the ambit of sec. 47. As is clear from the wording of sec. 2 sub -sec. (2) this order which relates to the execution of a decree and falls within sec 47 shall be deemed to be a decree. As such an appeal would lie from it under sec. 96 of the G. P. C. The preliminary objection is clearly untenable and is, therefore, overruled.