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2015 DIGILAW 2735 (ALL)

Rajendra Kumar Yadav v. Shobha Rani Yadav

2015-09-03

MANOJ KUMAR GUPTA

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JUDGMENT Manoj Kumar Gupta, J. By means of this petition, under Article 227 of the Constitution, the petitioner has assailed the validity of the order dated 23/2/2015 passed by the Civil Judge (Senior Division), Meerut in execution case no. 5 of 2013, whereby the objections filed by the petitioner has been rejected as well as the order dated 2/7/2015 passed by the District Judge, Meerut dismissing the civil revision no. 11 of 2015. 2. The petitioner is judgement debtor in Original Suit No.409 of 2010. Therein, the decree passed on 13/3/2013 against the petitioner is to the following effect : - Þokfnuh dk okn ,d i{kh; : i ls lO;; vkKIr fd;k tkrk gSA izfroknh dks funsZ’k fn;k tkrk gS dog iz’uxr Hkou ch&135] ik.Mo uxj esjB dks fjDr djds mldk dCtk vUnj 30 fnol okfnuh dks lkSai nsa A izfroknh dks : i;s 1]11]940@& ykblsal Qhl] lwpuk i= O;; o voS/k mi;ksx gtkZ rFkk fn0 1&4&2010 ls : i;s 110@& izfrfnu dh nj ls okLrfod dCtk fn;s tkus dh frfFk rd mi;ksx gtkZ Hkh vnk djsxkAß 3. When the decree was put to execution, the decree holder prayed to the executing court for delivery of actual possession of the suit property by executing the decree in the manner provided under Order XXI, Rule 35 CPC. At this stage, the petitioner filed objections to the effect that the suit instituted was for mandatory injunction and thus, the decree can only be executed in the manner provided under Order XXI, rule 32 CPC and not under Order XXI, rule 35 CPC. The objection has been rejected by the executing court vide order dated 23/2/2015, holding that the decree passed against the petitioner directs him to deliver possession of the suit property, and since it has become final, and thus there is no illegality in issuing a writ of possession. The revisional court while dismissing the revision noticed the provisions of Order XXI, rule 32(5) CPC whereunder the executing court is empowered to get the act required to be done by the judgement debtor by some other person appointed by the court. It has been held that once the petitioner has failed to deliver possession, as mandated, he can be compelled in doing so through the agency of the court. 4. It has been held that once the petitioner has failed to deliver possession, as mandated, he can be compelled in doing so through the agency of the court. 4. The only submission made by learned counsel for the petitioner is that the suit which was instituted by the plaintiff-respondent was for mandatory injunction directing the petitioner to handover the possession of the suit property to the plaintiff. The plaintiff has not prayed for decree of possession and consequently the decree can only be executed in the manner provided under Order XXI, rule 32 CPC. 5. Concededly, the decree which has been passed by the trial court in the instant case, directs the petitioner to deliver possession of the suit property to the plaintiff-respondent within 30 days. The petitioner has failed to do the act required to be done under the decree. In such view of the matter, the executing court was perfectly justified in issuing writ of possession to the court amin for getting the possession of the suit property delivered by evicting the petitioner. The same is clearly envisaged by Order XXI, rule 32(5) CPC. This Court does not find any jurisdictional error or any irregularity in the view taken by the courts below, which may warrant interference in exercise of supervisory power under Article 227 of the Constitution. 6. The petition lacks merit and is dismissed.