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2003 DIGILAW 1250 (RAJ)

Saroj Jain v. Basantilal

2003-09-04

N.P.GUPTA

body2003
JUDGMENT 1. - Heard learned counsel for the parties. 2. The matter comes on the application of the appellant, dated 5.5.2003, filed under Section 151, for restoration of the position of the possession of the shop, as it existed on 19.2.2003. 3. By the impugned judgment and decree, the learned trial Court has decreed the suit of the plaintiff-respondent No. 1, against the other three respondents, directing them to hand over possession of the suit premises, mentioned in Para 1 of the plaint, to the plaintiff within a period of one month, and also awarding cost to the plaintiff. 4. According to the plaint averments, the shop was taken in possession by the defendants. in connection with the investigation of a criminal case, registered in FIR No. 27/98, lodged by the present appellant. 5. This appeal was filed on 14.2.2003. and on 19.2.2003, it was admitted, and ad interim order was passed, staying the effect and operation of the impugned decree. According to the averments made in the application, after passing of this order, on 21.2 2003, the appellant approached the Police Station, with photostat copy of the stay order, but it was told that the SHO will come, and he will see, and therefore, at 12.15 AM the Xerox copy was supplied to the SHO, and on the same day, certified copy was produced before the learned trial Court. it is then alleged that the appellant came to know, that the respondent No. 1 has opened the shop, thereupon, the appellant submitted an application before the learned trial Court, for restoration of possession, but that was disposed of by mentioning that according to Police report, the possession was handed over to plaintiff on 20.2.2003. It was also observed that no execution proceeding is pending before the Court, and that there is no order of the High Court for restoration of possession. 6. This application is opposed on the side of the respondents, and it is contended that the appellant submitted the application before the SHO at 12.15 A.M., for complying with the order of this Court dated 19.2.2003, but then according to the plaintiff-respondent, it is wrong to contended that the appellant was not informed about the possession having already been handed over, rather an entry in the Roznamcha was made that the appellant was duly informed about the delivery of possession on 20.2.2003. It was also alleged, that the possession of the shop has been delivered to the respondent on 20.2.2003, in compliance of the impugned judgment and decree, and since the order of this Court dated 19.2.2003 does not contain any direction to restore the status quo ante, or to restore the possession of Smt. Saroj Jain, the defendants seek appropriate direction from this Court. as s to whether the possession has to be taken back, and restored to the appellant ignoring the direction contained in the impugned judgment. or the status quo. existing in the order of this Court dated 19.2 2003, has to be maintained. 7. Thus, from the above sequence of events, it is clear, that it is not in dispute, that on 19.2.2003, the ad interim stay was granted by this Court. staying the effect and operation of the impugned decree, it is also not in dispute that this order was delivered to the SHO on 21.2.2003, and it is also not in dispute that according to the defendants. it was on 20.2.2003, that the possession of the shop had been handed over to the plaintiff-respondent No. 1. 8. Suffice it to say, that admittedly, no execution application had been tiled by the plaintiff, and nothing has been shown as to on what basis, i.e. application, or the request of the plaintiff, or the direction of the Court, or warrant for possession, the defendants volunteered to deliver possession to the plaintiff, on the auspicious day of 20th Feb., 2003. True it is, that no caveat was filed on behalf of the plaintiff, but then the appeal was admitted, and interim stay order granted well before expiry of one month from the date of passing of the impugned judgment and decree, and in terms of the interim stay order of this Court, the effect and operation of the impugned decree has been ordered to be stayed. The obvious consequence is, as if the decree doesn't remain in existence, and therefore, the natural consequence is, that the things have to be restored, to the position, as if the impugned decree had not been passed. 9. Accordingly, it is directed, that the plaintiff should hand over the possession of the shop to the respondent No. 4, and report compliance to this Court, by 11th September, 2003. 10. 9. Accordingly, it is directed, that the plaintiff should hand over the possession of the shop to the respondent No. 4, and report compliance to this Court, by 11th September, 2003. 10. The appeal, be listed for further orders, on the stay petition, on 12.9.2003.Appeal Listed for Orders on Stay Application on 12.9.2003. *******