Decided on January 25,1955

Jaygopal Appellant
DEVIRAM Respondents


Chaturvedi, J. - (1.) THIS is an appeal filed by the Appellant who is a decree -holder and his appeal arises out of the execution proceedings. The Appellant had obtained a decree of pre -emption against Deviram and others. When an application for execution of the decree was presented before the Civil Judge, First Class, Morena, the Nazir was sent for the delivery of the possession of the property to the decree -holder. It appears that the house in question is in possession of several tenants who do not want to vacate it. An order, therefore, was passed by the Court for delivery of immovable property according to Order 21, Rule 36 and symbolical possession has been delivered to the decree -holder. The decree -holder is not satisfied with such sort of possession. He, therefore, contends (and this is clear from his several applications made on 12 -7 -50, 11 -8 -50 and 3 -10 -50) that the tenancy had been created by the judgment -debtor after the institution of the suit for pre -emption. There are, however applications from the tenants stating that they had been tenants of the judgment -debtor much before the institution of the suit or pre -emption. The question in brief is: whether the tenants are bound by the decree passed in the suit and whether they should deliver actual possession to the decree -holder? In other words, the question is: whether Rule 102 of Order 21, Code of Civil Procedure applies to this case? In my opinion the learned Court below ought to (sic) an (sic) and this (sic) ought to be determined. The learned Court (sic) has not given any reasons for not deciding the point which to me appears to be very material in this case. The decree -holder had been contending from the very beginning that the tenancy had been created after the institution of the suit for pre -emption and an opportunity ought to have been given to the parties to adduce evidence on the point. As yet the tenants have not executed a rent -note in favour of the decree -holder and the order of the Civil Judge has not been complied with. So either the decree -holder should get the actual possession of the house from the tenants, or the latter should at least execute rent -note in favour of the decree -holder. Till that is done the execution application cannot be regarded as disposed of There are many applications on the file which also remain undisposed of and the Civil Judge is directed to see to them.
(2.) IT is true that when the case came up on 18 -12 -50 the counsel for the Appellants did not invite the attention of the Court to the questions pending consideration. But it was wrong on the part of the Court to say that nothing remained on the file to be done and to dispose of the file on that ground. For all this, I am of opinion that the decree -holder himself was responsible as he did not instruct his counsel. I, therefore, think that this appeal be allowed but the decree -holder should be deprived of his casts of this appeal and should also pay costs to the Respondents. I would, wherefore, allow the appeal, set aside the order passed on 18 -12 -50 dismissing the execution and send the case back for disposal of the case in the light of the observations made above. The decree -holder Appellant will bear his own costs of this appeal and the Respondents will be entitled to their costs from the Appellant. Khan, J.
(3.) I agree.;

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