KRISHNA CHANDRA DEB Vs. RAJENDRA NARAYAN BHANJ DEO

JUDGEMENT

(1.) This is an application for leave to appeal to His Majesty in Council from an order made by this Court on January 7, 1936, in an application in revision against the order of the Subordinate Judge of Cuttack made on January 10, 1934. It is unnecessary to state elaborately the facts of the case; it is sufficient to say that the respondent (the Raja of Kanika) in this application 1931, that is during the pendency of a suit brought by the petitioner on March 29, 1930, in which suit a decree was pronounced in his favour in December 1933.

(2.) Now there appears to have been an application for execution, that is to say for delivery of possession to the petitioner and this was anticipated by an application by the respondent under Order XXI, Rule 100, Civil Procedure Code. This application, however, it appears was dismissed but on what grounds it is immaterial to state; the fact is that the petitioner had no notice of the application. A subsequent application was made by the respondent, the Raja, after an application had been made and a writ of delivery of possession issued to the petitioner. The learned Subordinate Judge dealt with the matter under Order XXI. He expressed himself in these terms: I think the case should he decided according to the principles laid down in Rule 99 or Rule 101 of Order XXI, Civil Procedure Code, although the present miscellaneous case does not strictly fall under either of these rules.

(3.) I understand him to have meant by those words that the case did not strictly come under Order XXI, Rule 100, by reason of the fact that possession had not actually been delivered to the petitioner: at any rate that is the meaning attached to it by the parties to this application. Now the learned Judge disposed of the application of the respondent in the respondent's favour, hence the application to this Court in revision. Saunders, J., who delivered the judgment of this Court made this statement: It is argued that the Raja ought to have waited until an attempt was made to deliver possession to the petitioner and then to have resisted the delivery of possession, leaving it to the petitioner to make an application under Order XXI, Rule 97. The Court, however, merely anticipated a situation which would afterwards arise on the application that presumably would be made by the petitioner under Rule 97.