ATUL KUMAR GOYAL; OMKAR Vs. RADHEYSHYAM
LAWS(UTN)-2013-9-65
HIGH COURT OF UTTARAKHAND
Decided on September 17,2013

Atul Kumar Goyal; Omkar Appellant
VERSUS
RADHEYSHYAM Respondents

JUDGEMENT

- (1.) This second appeal is directed against the order dated 08.09.2013 passed by Additional District Judge Roorkee, in Civil Appeal No. 02 of 2008 whereby said court has dismissed the appeal and affirmed the order dated 02.01.2008 passed by the Executing Court/Civil Judge (Senior Division) Roorkee, in Misc. Case No. 28 of 1995.
(2.) Brief facts of the case are that in the year 1989, the plaintiff/respondent No.1 instituted Suit No. 164 of 1989 for specific performance of contract which was decreed vide judgment and decree dated 23.04.1993. Said decree was put under execution on 02.12.1994. During execution proceedings sale deed was got executed in terms of the decree. Thereafter, the possession of the property was to be delivered to the decree holder/respondent No.1. When the possession was attempted to be given to the decree holder obstruction was put to the present appellants and objections were filed under Order 21 Rule 97 Code of Civil Procedure, 1908, on the basis of which Misc. Case No. 28 of 1995 was registered. Said objections were decided by the Executing Court, after hearing the parties on 02.01.2008 holding that the appellants claiming to be tenants in the property were inducted after institution of suit and as such liable to be dispossessed in view of the provision of section 52 of Transfer of Property Act, 1982. Said view was affirmed by the lower appellate court.
(3.) Learned counsel for the appellants submitted that since the appellants were not the defendants, as such, as against them only symbolic possession can be given to the decree holder. On the other hand, learned counsel for the respondent No.1 (decree holder) argued that since the appellants were inducted as tenants by the judgment debtor to frustrate the decree passed by the court, as such, it is not a case where symbolic possession is required to be given the decree holder.;


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