Rohtas and ors. vs Bakhtawar

J.V. Gupta, A.C.J.

This revision petition is directed against the order of the executing Court dated November 3, 1988, whereby the objection petition filed by the judgmentdebtors petitioners was dismissed.

The decreeholder Bakhtwar filed a suit for the grant of the permanent injunction restraining the defendants from interfering with his possession over the land, in question, except in due course of law. The said suit was dismissed by the trial Court on October 16, 1984, but was decreed in appeal on August 7, 1985. The decree passed by the Court of appeal was that the suit of the plaintiff for permanent injunction was decreed and the defendants were restrained from ejecting the plaintiff from suit land except in due course of law. Later on, according to the decreeholder, he was dispossessed illegally and thus the judgmentdebtors had disobeyed the decree passed against them and, therefore, he moved an application under Order XXI Rule 32, Code of Civil Procedure, in the executing Court. In that application, objections were raised on behalf of the judgmentdebtors. Prayer was also made that a local Commissioner be appointed to enquire as to which party was in possession of the land. The said objection petition was contested on behalf of the decreeholder and the executing Court without framing any issue and allowing the parties to lead evidence, dismissed the same summarily by the impugned order.

The learned counsel for the petitioners submitted that after the decree dated August 7, 1985, necessary correction in the Khasra girdawari was made on February 28, 1986. It was found at that time that the possession was that of the judgmentdebtors and not that of the decreeholder. Since the decreeholder never challenged the said order correcting the Khasra girdawari, it had become final between the parties and, therefore, no execution application as such was maintainable. He further submitted that there was already an eviction order against the decreeholder dated June 23, 1969, and, therefore, the possession was taken in pursuance thereof.

On the other hand, the learned counsel for the respondentdecreeholder submitted that all these objections were taken by the judgmentdebtors in the civil suit itself and all these contentions were repelled by the appellate Court while decreeing the plaintiff''s suit. According to the learned counsel, thus, the objections have been dismissed summaril by the executing Court.

After hearing the learned counsel for the parties, I am of the considered opinion that before proceeding with the execution application under Order XXI Rule 32 of the abovesaid Code, the Court must come to the conclusion that the judgmentdebtor had an opportunity to obey the decree and he has wilfully failed to obey it. It is only after that the decree may be enforced, as provided therein. Since no such finding has been given by the executing Court as such, the execution could not proceed.

Consequently, this revision petition succeeds. The impugned order is set aside and the executing Court is directed to frame the necessary issue and to allow the parties to lead evidence in support of their contentions. The parties have been directed to appear in the executing Court on April 19, 1990.