- (1.) RESPONDENT No. 3 Bhola Shankar Garg, instituted a suit No. 313 of 1958 inter alia for possession over a piece of land against one Mohammad Suleman. The suit was decreed ex parte on 21st April, 1965. The ex parte decree was executed by respondent No. 3 and possession was delivered to him in execution of that decree on 2nd June, 1965 and by an order dated 26th July, 1965 the execution was struck off in full satisfaction. An application was made for setting aside the ex parte decree by the defendant which was allowed on 14th Sept. 1965 and the ex parte decree was set aside. Subsequently the suit was contested by the defendant but was again decreed on 17th August, 1971. The appeal filed against that decree was dismissed on 14th August, 1972. A second appeal was thereafter filed in this Court which too was dismissed on 22nd February, 1980. RESPONDENT No. 3 thereafter made an application for execution of the decree dated 27th August, 1971 on 19th August, 1980 giving rise to execution case No. 108 of 1972. It is to be noted that during the Pendency of the suit Mohd. Suleman had died and his legal representatives including the present petitioner were substituted. On receipt of the notice of the execution application the petitioner filed an objection under S. 47 of the Civil P. C. on three grounds : (i) Since Possession had already been delivered to respondent No. 3 on 2nd June, 1965 in execution of the ex parte decree dated 21st April, 1965 and the execution was struck off in full satisfaction on 26th July, 1965, the second application for execution was not maintainable, (ii) Smt. Amna Begum who was one of the daughters of Mohd. Suleman had not been substituted along with his other legal representatives consequent upon his death and, as such, the decree was not executable and (iii) There were certain constructions standing on the land in dispute and since no decree for demolition had either been prayed for or passed, possession over the land in dispute could not be delivered to respondent No. 3.
(2.) AFTER hearing the parties the Munsif dismissed the objection filed by the petitioner on 2nd September, 1980 and repelled his contention in respect of all the three grounds. The petitioner filed a revision against that order before the District Judge which was dismissed by the 3rd Additional District Judge; Bulandshahr, respondent No. 1 on 10th Nov. , 1981, Aggrieved, he has filed this writ petition with a prayer to quash these two orders dated 2nd Sept. , 1981 and 10th Nov. , 1981, copies whereof have been filed as Annexures-4 and 5 to the writ petition. Those very three grounds on which the objection had been filed by the petitioner under S. 47 of the Civil P. C. have been pressed before me. Coming to the first ground namely, that since possession had already been delivered to respondent No. 3 on 2nd June, 1965 in execution of the ex parte decree dated 21st April, 1965 and the execution was struck off in full satisfaction on 26th July, 1965 the second application for execution was not maintainable, suffice it to point out that it is not the ex parte decree which was sought to be executed in Execution Case No. 108 of 1972. Counsel for the petitioner has placed reliance on certain decisions in which it has been held that once a decree had been executed to the satisfaction of the decree-holder a second application for execution of the same decree was, not maintainable. In one of the cases it was also held that even if in execution of a decree for possession, only symbolical possession was delivered but the decree-holder was satisfied with such delivery of possession and got his execution application struck off he could not subsequently file another execution application for delivery of actual possession. Since in my opinion all those cases are clearly distinguishable on the ground that in the instant case it is not the ex parte decree dated 21st April, 1965 which was sought to be executed in execution case No. 108 of 1972 but the decree passed after contest on 27th August, 1971 was sought to be executed in the aforesaid execution case, I do not find it necessary 16 give a recital of those cases. Suffice it to point out that no decision has been brought to my notice where on facts similar to the facts of the instant case it may have been held that a decree passed on merits for possession after contest was not executable simply because possession had already been delivered to the decree-holder in execution of an ex parte decree which was subsequently set aside. As already indicated above the crux of the matter in such a case is as to whether it is the same decree which was executed once is being executed again or it is a different decree. Once an ex parte decree has been set aside it becomes non est and it is only the subsequent decree passed after contest which is to be treated as decree in the suit and it is that decree alone which can be executed. The case of respondent No. 3 before the Munsif, as is apparent from the order of the Munsif dated 2nd Sept. , 1980 (Annexure-4 to the writ petition) was that consequent upon the ex parte decree being set aside he himself surrendered possession over the land in dispute in favour of the petitioner and it was in these circumstances that the decree for possession passed subsequently after contest on 27th August, 1971 had to be executed again for delivery of possession. This case seems to have been accepted by the Munsif in his order aforesaid. Counsel for the petitioner, however, urged that the petitioner had taken forcible possession over the land in dispute. In my opinion, it is not necessary to go into this question as to whether after the ex parte decree was set aside, possession was taken by the petitioner by force or it was surrendered by respondent No. 3. What was of importance was as to whether on the date when the decree for possession was passed on 27th August, 1971, the petitioner was or was not in possession. Since in either case he was in possession on that date and a decree for his dispossession was passed the manner in which he got possession on the ex parte decree being set aside was not material in Execution Case No. 108 of 1972.
(3.) COUNSEL for the petitioner also urged that forcible possession had indeed been taken back by the petitioner even before ex parte decree was actually set aside. Nothing, however, on the record has been brought to my notice which may indicate that this was ever the case of the petitioner either before the Munsif or before respondent No. 1. An application has been filed on behalf of the petitioner today along with photostat copy of an objection filed by respondent No. 3 on 3rd Oct. , 1972 in execution case No. 108 of 1972. After referring to the said objection it was urged that a perusal of the said objection indicated that possession had been taken back by the petitioner even before the ex parte decree was set aside. I have carefully gone through the objection and in my opinion there is no such admission by respondent No. 3 in the said objection. In so far as the second ground is concerned namely, that the decree was not executable in as much as Smt. Amna Begum who was one of the daughters of Mohd. Suleman had not been substituted along with his other legal representatives consequent upon his death, it has been pointed out in the impugned orders that on an application being made by respondent No. 3 and after hearing the proposed legal representatives five legal representatives of Mohd. Suleman were substituted in the suit. It is further clear from the impugned orders that the five legal representatives who were sought to be substituted did not raise any objection at any earlier stage either in the suit or in the first appeal or even in the second appeal that the suit was not maintainable inasmuch as one of the legal representatives of Mohd. Suleman namely Smt. Amna Begum had not been substituted. The Munsif and the respondent No. 1 have taken the view that the decree could not be held to be inexecutable on this ground either. In my opinion, the view taken in this behalf in the impugned orders does not suffer either from any manifest error of law or error of jurisdiction and cannot be interfered with under Art. 226 of the Constitution.;