- (1.) The petitioner as Plaintiff had instituted Original suit No.101 of 1961 against the respondent no.3 as defendant, in the court of learned Munsif Magistrate, Dehradun, for declaration that she is a tenant in respect of the suit property. The defendant on the other hand lodged a counter claim. Learned III Munsif Magistrate, Dehradun, dismissed the said suit and allowed the counter claim by judgment dated 26-11-1962. Against which, Civil appeal no.130 of 1962 was preferred by the plaintiff petitioner herein. The said appeal was also dismissed. There upon the respondent no.3, defendant filed an application for execution, which was numbered as Execution case no.52 of 1962, by which the defendant sought recovery of possession and decretal amount from the plaintiff. In connection with the said execution case the property of the defendant (Petitioner ) was attached and were put to auction to be held on 6-2-1991. On 5-2-1991 a compromise was entered into between the parties in the court, which was recorded by the learned Munsiff Magistrate, Dehradun. In terms of the said compromise the petitioner had paid a sum of Rs.30680/- and had handed over the key of the suit property to the defendant, respondent no. 3 herein symbolising the delivery of possession on the assurance that the plaintiff had vacated the suit premises. Thereafter when the defendant - respondent no. 3 herein went to take possession of the suit properly, discovered that the plaintiff's articles were still inside the suit - property and the plaintiff petitioner did not allow the defendant respondent no. 3 herein to take possession of the suit property. On 6-2-1991 the petitioner filed an application for enforcement of the decree with regard to the delivery of possession. It is contended by the plaintiff that in the compromise it was recorded that the decree was satisfied fully and the same was duly-reflected in the order dated 5-2-1991 wherein execution case was also dropped upon satis faction. Therefore, the said execution case can no be revived. It is further contended that after the said compromise was effected the petitioner has been given fresh tenancy at the rate of rent of Rs.301/- per month in respect of the suit property. Since then the petitioner had been paying rent regularly. However, the defendant - respondent no.3 did not grant any receipt in respect of payment. By reason of such grant of fresh tenancy there has been a new contract of tenancy which can never form subject matter of the execution proceeding. The petitioner herein has taken ail these objections filed by him in the said execution case Despite such objections the learned Munsif Magistrate, Dehradun by order dated 30-6-1993 directed recovery of the possession in favour of defendant - respondent no. 3 through Amin.
(2.) Being aggrieved by the said order dated 30-6-1993 the petitioner plaintiff preferred Civil revision no. of 1993 before the learned District Judge, Dehradun, which was assigned to the learned Additional District Judge, Dehradun who by order dated 9th July 1993 dismissed the said revision and the order dated 30th June 1993 passed by the learned Munsiff Magistrate Dehradun, was affirmed. If is these orders against which the present writ petition, under Article 226 of the Constitution, had been preferred.
(3.) In the counter affidavit the defendant-respondent no. 3 has contended that the compromise was agreed in presence of learned Munsif Magistrate in connection with execution case no. 52 of 1986 to the extent that the petitioner was delivering vacant possession by handing over the key of the suit property to the defendant-respondent no.3 and had paid a sum of Rs.30680/- being the damages payable pursuant to the decree in consideration that the property of the defendant which were to be auctioned on 6-2-1991 be released after recalling the proclaimation of auction to be held on 6-2-1991. But the defendant-respondent no.3 could not obtain possession physically on account of refusal by the plaintiff -petitioner herein to vacate the suit premises, in which he had kept his belongings and articles. Therefore, the defendant respondent no.3 had filed the present application for recovery of possession in terms of the decree. Against which the plaintiff petitioner has filed his objections. After consideration whereof the learned Munsiff Magistrate had allowed the said application for delivery of possession. By an order dated 30-6-1993 the revision against the said order stood dismissed by an order dated 9th July 1993. Since the plaintiff has played fraud with the court, therefore, in execution of the decree possession should be delivered to him and the present writ petition should be dismissed.;