JAGADISH NATH ROY Vs. NAFAR CHANDRA PARAMANIK

JUDGEMENT

(1.) This appeal has been preferred by a decree-holder from an order passed by the District Judge of Dinajpur affirming on appeal an order of the Munsif, by which an execution case was dismissed on the objection of the judgment-debtors.

(2.) A suit for declaration of title and recovery of khas possession was dismissed by the trial Court. On appeal, this decision was reversed and a decree was passed by which it was ordered as follows: Plaintiffs title be declared and plaintiffs do get khas possession of the land Defendants do remove the structures within two months From this date; in default they shall be removed in execution of this decree....Plaintiffs do get costs of both the Courts with Interest at 6 pt c. per annum.

(3.) This appellate decree was passed on 5 October 1923. The defendants thereupon preferred a second appeal to this Court. While this second appeal was pending the decree- holder on 1st, August 1924 applied for execution. In, the prayer column of the tabular statement there was a prayer for khas possession by removal of the judgment-debtors and of the structures standing on the land and also a prayer that the structures be sold and the proceeds credited against the dues under the decree and that the expenses of getting possession by removal of structures be paid out of the sale proceeds and if the said sale proceeds be not sufficient then the balance be realized by attachment and sale of the judgment-debtor's moveables. The application was registered and a writ under Order 21, Rule 35, Civil P. C, was issued fixing 27 August 1924 for its execution and return. The writ was exactly in Form No. 11, Appendix E, to the Code, directing the bailiff to put the decree-holder in possession and authorizing him to remove any person bound by the decree who might refuse to vacate. On 20 August 1924 the peon delivered possession to the agent of the decree-holder by fixing up a bamboo accompanied with the beating of drum and the latter gave a receipt acknowledging, that he had received delivery of possession of that character. On the same lay, as the order shoot shows, the judgment debtor applied to the Court for stay of delivery of possession, but the Court finding that process for delivery of possession had already been issued passed no definite orders but only adjourned the consideration of the application till the process was received back from the Nezarat. On 27 August 1924 the decree-holder put in talabana for issue of processes under Order 21, Rule 30, Civil P. C, as regards the execution of the decree for costs, but raised no objection on the ground of his not having received khas possession in accordance with the terms of the writ and the Court recorded on the order-sheet: "Possession delivered on the decretal land."