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2004 DIGILAW 1217 (PAT)

Kariman Prajapati @ Kariman Kumhar v. Chhaichhu Mahto @ Chhachhu Matho

2004-12-07

S.N.HUSSAIN

body2004
Judgment S.N.Hussain, J. 1. Heard learned counsel for the parties. 2. This civil revision arises out of title suit No. 50/1987 (46/1988) in which the plaintiff-decreeholder (opposite party No. 1) sought the reliefs of declaration of title and confirmation of possession and also for an injunction restraining the defendants from interfering with the plaintiffs possession and in the alternative recovery of possession if the plaintiff is found to be dis-possessed by the defendants during the pendency of the suit. The said suit was decreed on 7.5.1990 and the title of the plaintiff was declared and his possession was confirmed and the defendants were restrained from interfering with the plaintiffs possession. Against the said decree the defendants filed title appeal No. 7/1993 which was dismissed on 19.5.1995, which was never challenged. However, much later the plaintiff-decreeholder filed Execution Case No. 6/1999 (Annexure-2) for two reliefs, namely, (i) recovery of cost and (ii) arrest and detention of judgment-debtors for violating the order of injunction by tress-passing and by making construction. It transpires that later on 4.10.2002 the executing Court ordered for delivery of possession in favour of the decree-holder with respect to the suit properties, but admittedly possession was not delivered by the Court. 3. Thereafter, a peculiar circumstance has arisen in which the plaintiff- decreeholder claims that he has been dis-possessed by the defendants-judgment debtors who were threatening him during the pendency of the suit whereas the defendants-judgment debtors claim that the plaintiff was in possession of the suit property in accordance with the judgment and decree of the Court and the defendants-judgment debtors were not disturbing his possession. In the aforesaid circumstances, the defendants judgment debtors filed a petition under Section 151, CPC on 30.6.2003 (Annexure-5) before the Court below for recalling the earlier order dated 4.10.2002 regarding the delivery of possession. The said petition of the defendants judgment debtors dated 30.6.2003 has been rejected by the learned Munsif, Aurangabad, by the impugned order dated 16.9.2003 passed in Execution Case No. 6/1999. 4. The learned counsel for the plaintiff-decree holder (opposite party No. 1) vehemently opposes the contention of the learned counsel of the defendant- judgment debtor (petitioner) claiming that in the plaint he had claimed delivery of possession also and from the impugned judgment it is also apparent that the defendants were threatening to dispossess the plaintiff and thereafter the plaintiff has been actually dis-possessed by the defendants. Hence, in the aforesaid circumstances, the executing Court was quite justified in passing the order dated 4.10.2002 for delivery of possession. He also relied upon a decision of this Court in the case of Mosst. Ramsundari Devi and Ors. V/s. Satban Singh and Ors., reported in 1986 BLJ 71, in which it was held that even where a decree for delivery of possession was not passed, the executing Court had the jurisdiction to issue order for delivery of possession. In the aforesaid circumstances, he submits that there was no occasion for recall of order of delivery of possession dated 4.10.2002 which was quite legal and proper and the learned Court below has rightly refused to recall the same. 5. After hearing the learned counsel for the parties and after perusing the materials on record, it is quite apparent that the suit was filed for declaration of title and confirmation of possession and injunction and in case of dis-possession during the pendency of the suit, for recovery of possession, but by the judgment and decree of the suit it is also apparent that at the time of deciding the suit the plaintiff was in possession and hence the learned trial Court had affirmed his possession and restrained the defendants from interfering with the plaintiffs possession. Here, in this case the suit was not for delivery of possession and it was only sought as an alternative remedy whereas in the aforesaid case of Mostt. Ramsundari Devi and others, (supra), in the plaint it was specifically and rightly prayed for delivery of possession. Hence, the said decision is not applicable to the facts and circumstances of this case. 6. Furthermore, even in the execution petition no relief for delivery of possession was sought by the plaintiff and only a prayer for recovery of cost was made and also for arrest and detention of the judgment-debtors for violating the order of injunction. In the said matter, the plaintiff was fully entitled for recovery of cost in the execution proceeding, but so far the question of violation of order of injunction is concerned, the executing Court is not the proper authority, rather a petition under Order XXXIX, Rule 2-A, CPC was the proper remedy and the plaintiff has already filed Misc. Case No. 1/1992 before the learned Sub-Judge-lll, Aurangabad, and has taken necessary steps for that. Case No. 1/1992 before the learned Sub-Judge-lll, Aurangabad, and has taken necessary steps for that. Hence, in the aforesaid circumstances, there was no occasion for the executing Court to order for delivery of possession on 4.10.2002 and the said order was clearly illegal and without jurisdiction due to the errors apparent on the face of the record and hence it was incumbent upon the learned Court below to recall the same when the matter was pointed out by the judgment-debtors. 7. In the aforesaid circumstances, the impugned order of the learned Court below is set aside and this civil revision is allowed. However, this order will not affect the recovery of cost by the executing Court or the Misc. Case filed by the plaintiff regarding the violation of order of injunction which has to be decided in accordance with law.