LAWS(MPH)-2012-2-114

SALMA BEGAM Vs. JUMMAN KHAN

Decided On February 21, 2012
SALMA BEGAM Appellant
V/S
JUMMAN KHAN Respondents

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution of India is directed against the order dated 18.7.2011 passed by the Court below. The petitioners, who are judgment debtors are aggrieved by order dated 18.7.2011.

(2.) The judgment and decree was passed in favour of respondents/plaintiffs in Case No. 102-A/94 dated 18.7.2011 by the Civil Court. An appeal under Section 96 of C.P.C. was preferred by Jameel Khan which was registered as Appeal No.57- A/05. The appellate court by its judgment dated 1.7.2005 partially allowed the appeal and rejected the judgment of trial Court with regard to easementary right between all the plaintiffs but declared that the plaintiff has a right to use the way at the north of his house towards Mahatma Gandhi Road as per map and from the room mentioned in the said map. Interestingly, an application under Order 6 Rule 17 C.P.C. was filed by Jumman Khan before the Appellate Court. It was stated in the application for amendment that the map is erroneously prepared and the room in question is in the first floor. For the reasons mentioned in the amendment application, plaintiff himself prayed to allow the same. However, the appellate court for the reasons mentioned in para 14 and 15 rejected the same.

(3.) The judgment debtor then filed second appeal before this Court which was registered as S.A.1194/05. This Court by order dated 7.4.2010 dismissed the appeal as withdrawn with the liberty to raise a ground about unexecutability of the decree on account of vagueness. In turn, the petitioners/judgment debtors filed an application for appointment of Commissioner. The said application was rejected, against which the present petitioners filed W.P.2078/11. This Court again observed as under:-