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2012 DIGILAW 2406 (ALL)

Bharat Sanchar Nigam Ltd. Thru. Prin. General Manager v. Dwarika Nath and Others

2012-10-11

SAEED-UZ-ZAMAN SIDDIQI

body2012
Saeed-Uz-Zaman Siddiqi, J.:— This revision has been preferred against the order dated 26. 05. 2012 passed by Learned Additional District Judge, Court No. 2, Lucknow in Misc. Case No. 10C of 2012 (BSNL vs. Pushpa Awasthi), by which the objections of the revisionist under Section 47 C. P. C. has been rejected. 2. I have heard both learned counsel for the parties and have gone through the records. 3. Admittedly, during the course of execution, commission was issued and Commissioner's report dated 17. 04. 2011 says "After inspection of the House, the portion of the House under tenancy was closed before me and a new lock was again put by Shri Anurag Awasthi at the place, it was and the key of lock was handed over to Shri Anurag Awasthi in absence of any direction in this regard to me." 4. This report makes it abundantly clear that the decree holder got possession of the premises on 31.01.2011 and, as such, the decree holder is not entitled to receive any rent w. e. f. 01.02.2011. 5. It was argued by learned counsel for the respondent that a large number of articles owned by the revisionist were lying in the disputed premises. There was no impediment upon the decree holder to throw all the articles and, as such, the decree holder was in possession of the premises. 6. Keeping in view of this factual aspect, the Learned Trial Court has wrongly rejected the objection moved under Section 47 C. P. C. 7. The report of the Commissioner was not disputed before this Court during the court of argument. In view of the above, the impugned order deserves to be set aside on the ground that when the possession of the disputed premises was delivered by the judgment debtor to the decree holder through the Commissioner, the judgment debtor is not entitled to receive any rent or damages from the date of delivery of possession. This important aspect has been lost sight of by the Learned Lower Court. Mere presence of some articles belonging to the judgment debtor does not ipso facto make the possession of the judgment debtor active on the disputed premises. In view of this fact, objection under Section 47 C. P. C. deserved to be allowed. 8. The revision is allowed and the impugned order is set aside. Revision allowed. _____________