Tarun Agarwala - (1.) -Heard the learned counsel for the parties.
(2.) THE petitioner is the decree holder and had purchased a plot in the year 1974. In the sale-deed, an easementary right was provided permitting the plaintiff to flow the waste water from the northern portion of the plot. It transpires that the defendant judgment debtor had no right or title of the land in question but interfered in the possession and obstructed the easementary right of the plaintiff. This resulted in the filing of Suit No. 331 of 1976 for a permanent injunction and, during its pendency, the parties arrived at a compromise and the suit was decreed in terms of the said compromise which became part of the decree which stipulated that the plaintiff would construct a permanent drain towards the northern portion and would have a right to flow the waste water and that the flow of water as well as the right of air would not be obstructed by the defendants over the area shown by the letter 'Cha', 'Jha', 'Kha' and 'Ja'. It is alleged, that pursuant to the decree, the plaintiff constructed the drain, but the respite was only short lived and, it is alleged that in the year 1992, the defendants again interfered in the easementary right of the plaintiff by not only damaging the drain but also making certain constructions over the disputed area. In this regard, the plaintiff made a complaint to the revenue authorities as well as to the District Magistrate praying that the alleged construction should be removed by the defendants. Pursuant to the directions of the revenue authority, an inquiry was ordered and a Revenue Inspector submitted a report indicating that an illegal construction was raised by the defendant and that the defendant had demolished the drain. THEse reports and the orders have been filed in the writ petition. It transpires that the revenue authorities directed the defendants to remove the construction but when all efforts failed, the plaintiff filed an execution application No. 32 of 1992 praying that the compensation be paid for the damages done by the defendants and the construction be removed. The defendants filed two objections under Section 47 of the Act. The first one was in the year 1994 in which the defendants alleged that no drain was ever constructed by the plaintiff pursuant to the compromise decree and therefore, the question of its demolition by the defendants did not arise. In the second objection, filed in the year 2005, the defendants submitted that the plaintiff had not given the date of the alleged demolition and, on account of this fatal information not being supplied, the decree could not be executed. The record of the writ petition suggests that the execution proceedings dragged on for several years and the executing court called for an Amin's report, which are numbered as 36-Ga and 44-Ga. In this Amin's report, the alleged obstruction in the flow of water from the drain has been pointed out as well as certain constructions being raised over the disputed area. The executing court, after considering the Amin's report as well as the objections, passed a composite order rejecting the objection of the defendant and allowing the execution application in part to the extent that the defendants having damaged the drain, was liable to compensate the petitioner by payment of Rs. 6,000 along with interest @ 5% p. a. The defendants, being aggrieved by the said order, filed a revision, which was allowed by the impugned order whereby the revisional court remanded the matter again to the executing court to decide the matter afresh in the light of the observation made therein. The plaintiff-petitioner being aggrieved by the revisional order has filed the present writ petition. This petition was presented by the petitioner in person and by an earlier order of the Court, Sri Gulrez Khan, advocate was appointed as an amicus curiae to assist the Court and place the submissions on behalf of the petitioner. The defendants were issued the summons who appeared through their counsel and were granted time to file a counter-affidavit which the defendants failed to do and eventually, the learned counsel for the respondents made a statement that he does not wish to file an affidavit and accordingly, the writ petition is being decided on the basis of the material placed in the writ petition.
(3.) HEARD Sri Gulrez Khan, the learned counsel for the petitioner and Sri R. B. Trivedi, the learned counsel for the opposite parties. The learned counsel for the petitioner submitted that the revisional court was impressed by the fact that the executing court should have first disposed of the Amin's report by passing a separate order and thereafter should have proceeded with the disposal of the execution application. Further, the revisional court held that the attachment order was not done in accordance with the provisions of Order XX1, Rule 54 of the C. P. C. and on these two grounds, remitted the matter back to the executing court to decide the matter afresh. The learned counsel for the petitioner submitted that the aforesaid two findings and consequent directions issued by the revisional court was patently illegal and without jurisdiction and consequently the revisional order was liable to be set aside.;