VIDYA DEVI Vs. BADRI YADAV

JUDGEMENT

(1.) This Civil Revision Application, at the instance of the plaintiff decree hblder-petitioner, is directed against the order dated 29.11.2002 passed by Munsif 1st Court, Dhanbad in Miscellaneous Case No. 11/2001 arising out of Execution,Case No. 25/99 whereby he has allowed the objection filed by the judgment debtor-opposite party under Section 47 of the Code of Civil Procedure (in short C.P.C.) and directed the Nazir, Civil Court, Dhanbad to restore possession of the standing on Survey Plot No. 66 under Khata No. 140 of Mouja, Dhanbad.

(2.) The facts of the case, in brief, is that the plaintiff-petitioner filed Title Suit No. 60/90 for eviction of the defendant from Schedule-C property fully described at the foot of the plaint comprised within Khata No. 31, Plot No. 67, Holding Nos. 56 and 58 of Ward No. VI (old) of Dhanbad Municipality measuring an area of 5 kathas. The suit was decreed on 5.02.1997 and the judgment and decree was confirmed upto the Supreme Court. The petitioner then levied Execution Case No. 25/99 and the Court below issued writ of delivery of possession. It is contended by the petitioner that possession of the decretal premises as described with reference to the boundaries, was delivered to the petitioner on 6.02.2001, 7.02.2001 and 9.02.2001 in presence of the Magistrate and the Police Force. The judgment debtor-opposite party immediately, after delivery of possession filed opbjection on 13.02.2001 under Section 47 read with Section 151, CPC. Challenging inter alia that in course of giving delivery of possession the Nazir of the Civil Court Illegally delivered possession of the houses standing over Plot No. 66 under Khata No. 31 which was not the subject matter of the decree passed by the Court. It was alleged that despite objection raised by the opposite party the Nazir of the Civil Court, in connivance with the decree holder, forcefully took delivery of possession of the houses standing on Plot Nos. 62 and 66. The opposite party, therefore, prayed in that application for restoration of possession of the house premises. The said objection was registered as Miscellaneous Case No. 11/2001. The petitioner-decree holder filed rejoinder to the said objection and refuted all the allegations made by the opposite party.

(3.) The Court below, after recording evidence of the parties and after considering the report of the survey knowing pleader commissioner who was appointed for that purpose, came to the conclusion that in course of delivery of possession the Nazir of the Civil Court has unauthorisedly delivered possession of the houses standing on Plot No. 66 from where the judgment debtor has been forcibly dispossessed. The Court below, accordingly, passed the impugned order directing restoration of possession of those houses.