BAHADUR KHAN Vs. BARI TALA

JUDGEMENT

(1.) This is an execution second appeal which raises an interesting little point. A suit was brought in the year 1934 by one Zahir-uddin Khan, purporting to sue on behalf of Bari Tala, against Bahadur Khan for possession of certain premises and for rent. On 25 March 1935 the plaintiff in that suit obtained a decree for possession and Zahir-uddin in fact obtained possession under that decree. He did not, however, manage to retain the fruits of his victory because on 28th September 1936 the decree was set aside on appeal and the suit was dismissed. In the result, therefore, the suit failed. This gave rise to the position which is intended to be covered by Section 144, Civil P.C., and on 16 March 1937 the successful appellant, Bahdur Khan, applied under that section for restitution to him of the possession of which he had been deprived under the decree that had been set aside. It was held that he was entitled to get the property back and an order was made accordingly. This order the local amin went to carry out on 19 October 1937. But he was met by a gentleman named Abdul Rashid-who is in fact Zahiruddin Khan's brother-claiming that the house belonged to him. In this way, the amin was prevented from getting possession. The next step was that on 25th October 1937 Bahadur Khan moved the Court under Order 21, Rule 97 of Sch. 1, Civil P.C. That rule provides thus: (1) Where the holder of a decree for the possession of immovable property...is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

(2.) As a matter of fact, this application came to nothing because on 4 January 1938 it was dismissed for want of prosecution and at the same time the application of 16 March 1937 was also dismissed for the same reason. On the same day however that is on 4 January 1938, Bahadur Khan launched a fresh application for restitution under Section 144, Civil P. C, making respondents to that application both Zahir-ud-din and Abdul Rashid. On 1 March an order was made upon this which, in my opinion, amounted to an order for possession. What was actually said was that the amin should go to the spot. What was intended obviously was that the amin should go to the spot and take possession. On 21st March the amin went and he was again prevented from obtaining possession by Abdul Rashid. On 29 March 1938 a second application was, accordingly, made by Bahadur Khan to the Munsif under Order 21, Rule 97, Civil P. C, "complaining of such resistance or obstruction" and it is upon that application that the orders now in appeal have been made. I have actually seen that application and though it is an informal document putting forward a complaint to the Munsif it is none the less, in my opinion, an "application" within the meaning of Rule 97 and, indeed, it has been so treated by the Court. I find nothing to complain of in this. It came before the Munsif and to put the matter briefly, the Munsif dismissed it upon the ground that it was "time barred." He says: I hold therefore that the application of the decree-holder Bahadur Khan to take action against Abdul Rashid Khan to prevent his resistance in delivery of possession is time-barred. Bahadur Khan will therefore not get any remedy against Abdul Rashid in this proceeding.... The application of Bahadur Khan for action against Abdul-Rashid Khan is dismissed....

(3.) It is perfectly true that in the course of his judgment the Munsif discussed all the circumstances and committed himself to & number of expressions of opinion on the facts. He expressed the opinion that Zahir-ud-din and Abdul Rashid were brothers and that they were each of them a mutwalli of a wakf of which Zahir-ud- din was the managing member. But it is equally clear that the ground upon which the Munsif disposed of the application was that it was time-barred and what he has said in other respects in his judgment is in my view, merely obiter. In due course this was taken on appeal to the Additional Civil Judge of Azamgarh and before him the point was taken that no appeal lay. I will in a moment discuss the reasons advanced why no appeal lay. It is sufficient however for the present for me to say that the learned Additional Civil Judge dismissed the appeal upon that ground. He held: ...Order 21, Rule 103 is absolutely clear that no appeal lies from an order on application under Order 21, Rule 97. In these circumstances I dismiss the appeal with costs,