SMT. MANORMA SINGH Vs. SMT. RAMJHARI DEVI

JUDGEMENT

(1.) This writ petition and the amendment petition (I.A. No. 2128 of 2009) has been filed against the orders dated 24.2.2009, 20.7.2009 and 21.7.2009 passed by the Munsif Second, Dhanbad in Misc. Case No. 38 of 2008 arising out of Execution Case No. 6 of 2004 rejecting the objection filed on behalf of the judgment debtor-petitioner under section 47 of the Code of Civil Procedure; the review petition and the petition for staying further proceeding in execution case.

(2.) Mr. V. Shivnath, learned senior counsel appearing for the petitioner, submitted that the said execution case has been filed for giving vacant possession of the suit premises, whereas in the decree, the respondent-judgment debtor was only given right to get the encroachment removed through the process of court. In support of his contention, he relied on Sec. 51(a) of the Code of Civil Procedure and also the judgment of State of Punjab and another Vs. Buta Singh [1995 Supp (3) SCC 684] .

(3.) It is not disputed that the plaintiff-respondent's right, title, interest and possession over Schedule A and B property has been declared by the trial court in T.S. No. 139 of 1987 and the defendant-petitioner was restrained permanently from interfering with the possession of the plaintiff; and he was also directed to remove the encroachment of 2' 6" over the drain on western side of the plaintiff's house within one month, failing which, the plaintiff was given right to get it removed through the process of the court. Such judgment and decree was affirmed by the appellate court with minor modification by reducing the width of Schedule A land from 2' 6" to 2'. The judgment debtor-petitioner was directed to remove the encroachment failing which the plaintiff-decree holder was given right to get it removed through the process of court. The petitioner filed second appeal in this court against the said judgment and decree but the same was dismissed.