CHHOTULAL Vs. RATAN CHAND

JUDGEMENT

(1.) This order will decide Civil Revisions Nos. 480 of 1985 and 352 of 1983 by this common order because in both of them common questions of law and fact are involved.

(2.) In both these revisions, the petitioners are persons who obstructed the delivery of possession which the Sales Ameen wanted to enforce in execution of a warrant for delivery of possession issued by the trial court under O.XXI, R.35, C.P.C. on applications for execution filed by non-petitioners in both the cases. Ratanchand non-petitioner in Civil Revision No. 485 of 1985 in execution of his decree against the judgement-debtor got a warrant of possession issued from the Munsif, Bikaner in execution case No. 68 of 1979 of that Court. This warrant of possession was returned by the Sales Ameen to the executing court with a report that the petitioners Chhotulal and Smt. Sadra, who are said to he brother and mother respectively of the judgement-debtor, obstructed the delivery of possession. Thereupon Ratanchand decree-holder filed an application under O.XXI, R.97, C.P.C. on Nov. 7, 1981. Notice of that application was issued to the obstructors. The obstructors filed a reply in which they pleaded that the application of Ratanchand decree-holder under O.XXI, R.97, C.P.C. was barred by limitation. Some other objections were also raised. The Munsif Bikaner after hearing the arguments came to the conclusion that the petition of Ratanchand under O.XXI, R.97, C.P.C. in execution case No. 26 of 1979 was barred by limitation and accordingly dismissed the same on May 22, 1982. The decree-holder did not file any appeal against this judgement of Munsif Bikaner dismissing his application under O.XXI, R.97, C.P.C. However, the decree-holder got fresh warrant of possession issued for possession of the disputed property in Execution case No. 68 of 1979. On this warrant of possession, the Sales Ameen made a report on Sept. 3, 1982 that the petitioners again obstructed the taking of possession and refused to deliver possession of the disputed property. The non-petitioner-decree-holders alleged that the petitioners were in possession of the property on behalf of judgement-debtor Shankarlal Bhanwarlal and they prayed that the petitioners be dispossessed from the disputed property. In reply to this second application under O.XXI, R.97, C.P.C., the petitioners referred to the dismissal of the previous application under O.XXI, R.97, C.P.C. by the Munsif, Bikaner on May 22, 1982 on the ground that the same was barred by limitation and that judgement of the Munsif had become final. The Munsif came to the conclusion that the second application under O.21, R.97, C.P.C. would not be entertained as the first application under the said Order had been dismissed on May 22, 1982, as a result of the amended R.108 of O.21 because the previous judgement dt. May 22, 1982 had the force of a decree. Aggrieved by this before of the Munsif Bikaner dt. Jan. 31, 1983, Ratanchand decree-holder filed an appeal before the District Judge, Bikaner who, by his order dt. Nov. 2, 1985 allowed the appeal of the decree-holder and set aside the judgement of Munsif Bikaner dt. Jan. 31, 1983. It is against this that the obstructionists Chhotulal and Smt. Sadra have filed the revision petition No. 485 of 1985.

(3.) Facts giving rise to revision No. 352 of 1983 are that Bhanwarlal had obtained a decree against Ramkishan and he filed execution No. 33 of 1979 for execution of that decree for ejectment of the premises in respect of which the decree was passed. In that execution a warrant of possession was issued but Satyanarain petitioner obstructed the delivery of the possession. Thereupon Bhanwarlal non-petitioner 1 filed an application under O.21, R.97, C.P.C. which was dismissed, on Jan. 12, 1982. The decree-holder sought a fresh warrant of possession and when the Sales Ameen went to execute that warrant, the petitioner again obstructed the delivery of possession whereupon the decree-holder filed a second application under O.XXI, R.97, C.P.C. which was registered as civil miscellaneous petition No. 2 of 1981 by the Munsif. In that second application, the petitioner raised an objection that the dismissal of the previous application filed by the decree-holder operated as res judicata and the second application under O.XXI, R.97; C.P.C. was not maintainable. The Munsif, Bikaner upheld the objection of the petitioner and dismissed the application of Bhanwarlal under O.XXI, R.97, C.P.C on the above ground. Bhanwarlal decree-holder filed an appeal which was registered as appeal No. 31 of 1982 in the court of the Civil Judge, Bikaner. As in Ratanchand's case the Civil Judge disagreed with the views of the Munsif Bikaner and held that the second application under O.XXI, R.97, C.P.C. was maintainable. He therefore, by his order dt. May 19, 1983 allowed the appeal of Bhanwar Lal decree-holder, set aside the judgement of the Munsif Bikaner and remanded the case to the Munsif to decide the subsequent application under O.XXI, R.97, C.P.C. on its merits. It is against this order of the Civil Judge Bikaner that the obstructionist Satyanarain has filed civil revision No. 352 of 1983.