HIGH COURT OF RAJASTHAN (FROM: JAIPUR)
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(1.)This civil second appeal of the obstructors is directed against an order of the Additional Civil Judge, Ajmer dt. Jan 5, 1983, by which their appeal was dismissed and the order of Munsif, Ajmer City, Ajmer dt. Feb 25, 1978 passed in a proceeding under O. 21, R. 97 of the Civil P.C. was upheld.
(2.)Very few facts need narration for the disposal of this appeal. Smt. Kalan Bai (respondent 1) instituted a suit for rent and eviction against the other respondent Khem Chand. The suit was decreed ex parte in her favour. She applied for the execution of decree and prayed for the issue of a warrant of delivery of possession of the property in dispute to her. The Court of Munsif issued the warrant for the delivery of possession and the bailiff went on the spot for this purpose on Feb. 10, 1974. The appellants were found in possession of the property and they refused to deliver the possession to the decree-holder. They, thus, caused the obstruction in the execution of decree and resisted the delivery of possession on Feb. 10, 1974. The decree-holder again applied for a fresh writ for the delivery of possession under O. 21. R. 35, C. P. C. When the bailiff went on the spot on July 12, 1975, the appellants again resisted the execution of decree and refused to deliver the possession of the property to the decree-holder. The warrant of delivery of possession thus remained unexecuted. The decree-holder thereupon submitted an application under O. 21 R. 97, C.P.C. on Aug. 11, 1975, complaining the resistance and praying for the removal of the obstruction caused by the appellants. The learned Munsif initiated an enquiry and issued notices to the appellants. The defence taken by the appellants was that they were not bound by the decree; their possession over the property in dispute was an old one and that the application of the decree-holder filed on Aug. 11, 1975 was time-barred. It was contended that the first resistance by them took place on Feb. 10, 1974. The application under O. 21, R. 97, C.P.C. should have been filed within 30 days from Feb. 10, 1974. The successive obstruction caused by them on July 12,1975 did not give rise to any fresh cause of action. The application of the decree-holder under O. 21, R. 97, C.P.C. was thus time barred. The learned Munsif, after holding an enquiry, recorded his finding as under :-
1) the appellants were the sub-tenants of the judgment-debtor Khemchand and the resistance offered by them was without just cause; and
2) the application filed by the decree-holder under O. 21, R. 97, C.P.C. was not time barred, it was within limitation.
(3.)The cause of action for preferring an application under O.21, R.97, C.P.C. accrued also on July 12, 1975 when the second resistance was made. The application could not be said to be time barred because of the obstruction caused by the obstructors (appellants) earlier also on Feb. 10, 1974. According to the learned Munsif, every successive resistance offered by the appellants gave a fresh cause of action to the decree-holder. He, therefore, allowed the decree-holder's application and directed that the possession of the property in dispute be delivered to the decree-holder by removing the obstruction caused by the appellants. Aggrieved against the said order, the appellants went in appeal, which was heard and decided by the learned Additional Civil Judge. The same contentions, which were placed before the learned Munsif, were reagitated in appeal. The learned Additional Civil Judge found no force in the contentions of the appellants. He concurred with the view taken by the Munsif. The appeal was consequently dismissed. They have now come up in second appeal.
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