RAMNATH RAMKRISHNA AGARWAL Vs. WASUDEO

JUDGEMENT

(1.) THIS appeal arises out of execution proceedings in execution case No. 96-A of 1937. The respondents obtained a decree for possession against Maroti and his son Laxman on 12-10-1937. On the death of Maroti, his widow was brought on record. The appellant is a transferee from the judgment-debtor of the house, a part of which is the subject-matter of dispute. The decree-holders applied for delivery of possession according to the plaint map referred to in the decree. The executing Court, behind the back of the appellant, and with only the legal representative of the judgment-debtor on record, appointed a Commissioner for delivery of possession according to the decree and the map. The Commissioner inspected the spot and reported that the appellant had encroached upon a part of the land which was to be placed in possession of the decree-holders. Thereupon a notice was issued to the appellant.

(2.) THE appellant denied that there was any encroachment and urged that the land described in the decree was actually demarcated by a pleader of the respondents before construction of the house and that he did not build on any land which was the subject-matter of decree in favour of the respondents. The Courts below have come to the conclusion that there was no estoppel and that the appellant did encroach upon a part of the land; and they have ordered him to give possession. The appellant comes up in second appeal.

(3.) THIS argument has considerable force. Order 26, B. 10(2), Civil P.C., applies to suits. It does not apply to execution proceedings as is clear from Section 141, Civil P.C., which makes the procedure provided by the Civil Procedure Code in regard to suits applicable to all proceedings in any Court of civil jurisdiction; and there are numerous cases in which it has been held that 'proceedings in any Court of civil jurisdiction' do not include execution proceedings.