S.D.AGARWAL, J. - (1.) BEFORE admission, respondent Nos. 2 and 3 put in appearance through Shri T.S. Pandey, Advocate. Counter and rejoinder affidavit have been filed. I have heard learned counsel for the petitioner and Shri T.S. Pandey, learned counsel for the respondents.
(2.) THE main dispute in the present petition is as to what property was taken possession of in pursuance of the ex parte decree passed in suit No. 38 of 1984 dated 21st August, 1984. This ex parte decree was set side and thereafter an application was made for restoration of possession by the tenant under Section 144 C.P.C. After lengthly proceedings it was ultimately decided that the judgment-debtor was entitled for restoration of possession as the ex parte decree was set aside. In pursuance of the above a writ of possession was issued against the petitioner for delivery of possession in respect of the entire property No. 41, Shivkuti, Allahabad. The petitioner filed an objection in the execution to the effect that in fact, the subject-matter of the suit was only the ground floor of house No. 41, Shivkuti, Allahabad and not the entire house and that he had only got possession of the ground floor of house No. 41, Shivkuti, Allahabad. In pursuance of the ex parte decree and possession of the entire house cannot be delivered to the judgment-debtor on the basis of the proceeding under Section 144 C.P.C. The judge, small causes Court, Allahabad, by a cryptic judgment dated 26th July, 1986 has decided the objection filed by the petitioner in the following words. "54-C Heard. The grievance is not justified. Possession has been sought only in respect of accommodation from which dispossession compliance, Rejected".
(3.) FROM the order it is clear that the judge Small Cause Court has not applied his mind on the question which was raised by the petitioner in regard to the execution of the decree in respect of the entire house No. 41 Shivkuti, Allahabad. Since in my opinion, this question has to be properly considered by the executing Court as there is a serious dispute between the parties in regard to the property which was actually delivered in pursuance of the decree dated 21.8.1984, the executing Court has to consider the question in detail and then decide the matter after considering the evidence on record and giving reasons for the same. The petitioner does not dispute the fact that the suit No. 38 of 1984 related to the ground floor. The extent of the property has been mentioned in the plaint itself. The writ of possession already issued shall be executed in respect of the property mentioned in the plaint of Suit No. 38 of 1984.;