- (1.) THIS is a revision application under Section 115, Civil Procedure Code against the order dated 10-9-1974 passed by the learned Additional District Judge, Gyanpur, Varanasi. 2. Briefly stated the facts giving rise to this application are that firm Jagarnath Prasad Thekedar, opposite party had filed a suit (No. 18 of 1961) for the recovery of money. In that suit attachment before judgment of certain property including a house with Ahata and Parti land bounded as below and situate in Qasba Bhadoi, District Varanasi, was made: North:- House and Ahata of Sukhnandanlal South:- House of Pyagram Gupta. East: Pucca Road which goes from Bhadoi to Gyanpur. West: Ahata of Sukhnandan Lal in possession of Elaka Prasad Baijnath Prasad.
(2.) IN execution of the decree the said house was put to auction on 15-1-1969 and was purchased by the decree-holder. The sale was confirmed on 17-8-1972 and the sale certificate was issued on 7-9-1972. On the same day the decree-holders auction purchasers moved an application under Order XXI, Rule 95, Civil Procedure Code for possession over the said house after removal of locks etc., if any. On 18-9-1972 they gave another application (7-D) praying that police aid may also be provided be cause the judgment- debtors were likely to resist delivery of possession. It may be stated here that Hansraj, Judgment- debtor, had died and the application was moved against his widow Smt. Jaswant Devi, son Prem Kumar, daughters Smt. Krishna Devi, Smt. Sarla Devi, and Smt. Sudarshan Devi. On 28-9-1972 the court passed the following order: "Issue warrant of possession returnable by 28-10-1972." On 11-10-1972 the application 7-D was allowed and a letter was directed to be issued to the Circle Officer Bhadoi for giving necessary police aid on payment of requisite charges by the decree-holder. On 25-10-1972 the court Amin went to deliver possession of the house. The pairokar of the decree-holder took him to Mauza Bagh Talab Sardar Khan and pointed out a house of which possession was to be delivered. The Amin was accompanied by a police constable also. The Amin compared the boundaries of this house with those given in the sale certificate and found that they tallied with each other. The only difference was that the sale certificate the house was shown to be situate in Qasba Bhadoi but, in fact, it lay in village Bagh Talab Sardar Khan. Plot No. or house No. was not given in the sale certificate. The Amin found that the house consisted of several rooms and manufacture of carpets was going on in the rooms and the Verandah and about 20 persons were working there. When some of these persons and one woman Smt. Jairaji (the revisionist) came near him he apprised them with the purpose of his visit. Smt. Jairaji gives out to him that the house belongs to her and she had got it constructed with the sanction of the Municipal Board. She showed the plan and sanction for construction. She also gave out that she was carrying on carpet manufacturing business in that house and the judgment-debtor or his heirs had no concern with it nor it was ever attached or sold in execution of any decree. She also represented that the house shown in the sale certificate lies in Qasba Bhadoi while this house is situate in Bagh Talab Sardar Khan and there is sufficient distance between the two places. She, therefore, refused to deliver possession of the house and also gave a written application (11-C) to that effect to the Amin. As the Amin apprehended reasonable apprehension of breach of the peace, he came back without executing the Parwana and submitted his report (10-C 2) to the court on 28-10-1972 narrating all the facts.
(3.) ON 4-11-1972 the defendant auction-purchaser gave another application (12-C) under Order XXI, Rule 95, Civil Procedure Code for issuing the parwana for delivery of possession again. This time it was prayed that a Vakil Commissioner be appointed to execute the Parwana and aid of one Sub-Inspector and four police constables be provided. On this application the following order was passed on the same day: "Issue writ to Sri Shiva Kumar Srivasatva Advocate who is appointed Commissioner to do the needful in terms of the application, a copy whereof shall be sent to him. Fee Rs. 50.00 plus necessary expenses. Report by 4-12-1972." On 10-11-1972 Smt. Jairaji, the revisionist moved an application (16-C 2) under Section 151. Civil Procedure Code stating that the judgment-debtor auction-purchaser was trying to dispossess her by misrepresentation that she was resisting delivery of possession on behalf of the judgment-debtors when, in fact, she had no connection with them and was in possession of the house in her own right. She, therefore prayed for time to file a detailed objection. The court ordered:- "Let the applicant file his regular claim by the 25-11-1972. This will be disposed of under Order XXI, Rule 97 (2) C. P. C. on 9-12-1972. Stay despatch of warrant of possession in the meantime." ;