KEWALI DEVI Vs. SUMATI DEVI

JUDGEMENT

(1.) This civil revision is directed against the order dated 17.5.2005 passed by Sub-Judge-5th Hazaribagh in Execution Case No. 17 of 2000/Execution Case No. 09 of 2002, whereby and whereunder the Execution has been dismissed with observation that if the decree holder so desire, may file a fresh execution for recovery of costs.

(2.) It appears that the petitioners/decree holders filed an application for execution of decree passed in Title Suit No. 79 of 1992 praying therein to eject judgment debtors from the suit properties, and Khas possession of the same be given to them. It appears that the said application was instituted as Execution Case No. 17 of 2000. During pendency of said Execution Case, another application under Section 94 read with Section 151 of the C.P.C. filed, stating therein that the judgment debtors are interfering with the right, title and interest of the decree holders and prevent them from cultivating, sowing and transplanting paddy seedlings over the suit land. Accordingly, it is prayed that appropriate order may be passed against the judgment debtors so that the decree passed by the court can be fully implemented.

(3.) It further appears that one more application filed on 19.9.2003, under order XXI Rule 32 of the CPC stating therein that judgment debtors were interfering with their right, title and interest over the suit land and not allowing them to cultivate and sow paddy crops. Therefore properties of judgment debtors be attached and they may sent to civil prison. The learned court below found that the decree was for declaration of title, confirmation of possession and permanent injunction. Thus in the present execution proceeding judgment debtors cannot be ejected from the suit properties, because confirmation of possession presupposes the possession of decree holder over the suit properties. The court below further find that the application under Section 94 and order XXI Rule 32 of the CPC is; not maintainable. Accordingly, the execution case has been dismissed by the impugned order.