Dalip Kaur vs Bant Kaur

G.C. Garg, J.

The petitioner filed a suit for permanent injunction restraining the defendantrespondent from taking forcible possession except in due course of law. The suit was decreed by the learned District Judge by judgment and decree dated 2.9.1978. The particulars of the land are fully detailed therein.

After some time, the decreeholder took out execution by making an application that the judgmentdebtor in violation of the decree forcibly dispossessed her and that she was entitled to restoration of possession of the land as detailed in the decreesheet and the judgmentdebtor was liable to be punished under Order 21 rule 32 of the Code of Civil Procedure.

On notice, the judgmentdebtor denied the allegations levelled against him. The executing Court by order dated November 12, 1981 dismissed the execution application. It is against this order that the present revision petition has been filed.

The learned counsel for the petitioner has brought to my notice the statements of Harnek Singh JD W1 and Just Singh JD W2 to show that the judgmentdebtor was now in possession of the property. It is even otherwise not disputed by the respondentjudgmentdebtor that he is in possession of the property. He further contended that at the time of passing the decree in her favour she was in possession and that decree had become final. He further submits that the decreeholder having been dispossessed after the grant of the decree, she was entitled to restoration of possession and judgmentdebtor is liable to be dealt with under Order 21 rule 32. He has brought to my notice the judgment of this Court in Ram Singh v. Sukh Ram 1989(2) RRR 574 (P&H) : 1989 PLJ 718. In the reported case, executing Court had directed the judgmentdebtor to restore the possession of the property in dispute to the decreeholder failing which proceedings to attach the property and for their civil imprisonment were to be taken. In revision by the judgmentdebtor, on consideration of the matter the judgment of the executing Court was approved by observing that ends of justice will not be met till possession of the land in dispute is also ordered to be restored to the decreeholder and that the executing Court has jurisdiction to order that the possession of the land in dispute be restored to the decree holder and neither the law nor the larger principles of natural justice come in the way in getting restoration of possession to the decreeholder in execution proceedings.

In the present case, the decreeholder was held to be in possession on the date of the decree viz., 2.9.1978 and thereafter the judgmentdebtor is admittedly in possession of the property in dispute. The learned executing Court has acted with material irregularity and illegality and has in my view refused to exercise jurisdiction vested in it in declining to order restoration of possession to the decreeholder. The order is thus not sustainable either in law or in principle. Once it is found that the judgmentdebtor is in possession of the property not by dispossessing the decree holder in due course of law but otherwise, in my view, the decreeholder is entitled to restoration of possession. I, therefore, set aside the order passed by the executing Court and grant the application for restoration of possession. The respondentjudgmentdebtor shall hand over possession of the property to the decreeholder within a period of three months from today failing which the executing Court will take steps forthwith to restore possession of the property in dispute, to the decreeholder by attachment of properties of the judgmentdebtor or take such other steps as necessary for that purpose. Since the judgmentdebtor is in possession for a period of more than ten years and this revision petition remained pending in this Court for a period of nine years, I direct the executing Court to dispose of the matter expeditiously and as early as possible in case the judgment debtor failed to deliver possession within a period of three months as indicated above. The parties to appear in the trial Court on 24.7.1991.

With the aforesaid directions, the revision petition is allowed. The order under revision is set aside. The petitioner shall have her costs which are assessed at Rs. 500/.