J. V. Gupta, J. - (1.) This revision petition is directed against the order of the executing Court dated 20th Feb., 1985 whereby the local commissioner was appointed to suggest the mode of partition of the suit property as per the preliminary decree dated 30th July, 1979.
(2.) Rajinder Kumar and others filed the suit for possession by way of partition and for the recovery of mesne profits, which was dismissed by the trial Court on 12th Oct., 1978. Feeling aggrieved against the same, the plaintiffs preferred an appeal which was accepted on 30th July, 1979. The operative part thereof as re-produced in the order of the District Judge, Gurgaon, dated 14th Sept., 1981, reads as follows:- "In the result, for the reasons recorded above, the appeal merits to be accepted. Consequently, the decree dated 12th Oct., 1978 under appeal passed by the trial judge is hereby set aside. A preliminary decree for possession by partition of two third share in the suit property described in para No. 2 of the plaint and shown in plan (Ex. P. 19) (wrongly shown situated in V. Nagina in plan Ex. P. 19) is hereby passed in favour of the plaintiff appellant No. 1 against the defendant respondent No. 1. It is further held that the plaintiff has 2/3rd share therein belonging to defendant No. 1. The trial Court shall appoint a Local Commissioner to divide the suit property between the plaintiff and the defendant No. 1 in accordance with their shares mentioned above. It is further held that the plaintiff shall be entitled to actual possession of that portion of the property which may fail to his share in partition even as against the defendants Nos. 2 to 8 who have no right to retain its possession. As no evidence has been led regarding the amount which may be awarded for use and occupation of the suit property to the plaintiff as against defendants No. 2 to 8, hence the suit so far as the refer for recovery of Rs. 600.00 for use and occupation for the period prior to the institution of the suit is concerned, is hereby dismissed. However, it is hereby directed that an inquiry shall be made as to the amount which may be due to the plaintiff on account of mesne profits of his share in the suit property from the date of institution of the suit until the delivery of possession of that share of the suit property to the plaintiff or until the expiration of three years from today whichever event first occurs and a final decree shall be passed by the trial judge in respect of the amount of mesne profits so determined. Defendants No. 2 to 8 shall also pay costs of the suit and appeal to the plaintiff. No relief is being granted against or in favour of defendants No. 9 to 16. Decree sheet he prepared accordingly." Against the said judgment and decree of the Additional District Judge, the present petitioners (the defendants) preferred Regular Second Appeal No. 2621 of 1979, which was dismissed in limine on 5th April, 1980. They further agitated the matter before the Supreme Court through S.L.P. (Civil) No. 9111 of 1980. Therein, the Supreme Court passed the following order: "The finding of the Courts below is that the petitioner Ghanisham Dass is a tenant in the house in dispute. It is open to him to apply in execution of the final decree for partition and possession claiming the benefit of Order XXI rule 36, CPC. Subject to this observation, the petition is dismissed." In view of the said Supreme Court, the defendants petitioners moved the application under sections 151, 152 and 153, Code of Civil Procedure, (hereinafter called the Code), before the District Judge, Gurgaon, which was dismissed by a detailed order dated 14th Sept. 1981. It was held therein that the decree-sheet was rightly prepared and that no amendment was required as alleged by the petitioners in view of the Supreme Court order, re-produced in the earlier part of this judgment. The learned District Judge observed in the said order as follows : "In view of the above discussion, I do not find any conflict between the judgment and decree of the learned First Appellate Court and hold that the decree has been prepared strictly in accordance with the provisions of Order XX Rules 6(1) of the Code of Civil Procedure and it agrees with the judgment completely." Against the said order of the District Judge, dated 14th Sept., 1981, the petitioners again approached the Supreme Court vide S.L.P. (Civil) No. 8229 of 1985 which was dismissed on 12th Sept., 1985, with the observations as re-produced in grounds for revision, paragraph 9(2), which read as follows:- "Special Leave Petition is dismissed." After the dismissal of the said Special Leave Petition by 15the Supreme Court the petitions filed the present revision petition it this Court along with an application for condonation of delay under section 5 of the Limitation Act. In the said application, viz., Civil Miscellaneous Application No. 6031-CII of 1985, it was stated that the above said Special Leave Petition had been dismissed mainly on the ground as observed orally that the petitioners have a remedy of filing a revision petition against the order of the learned Sub-Judge dated 20th Feb., 1985. However, the delay was condoned vide this Court order dated 21st March, 1986. The same averments were repeated in the revision petition also. It is most unfortunate that what the Supreme Court observed orally or not was taken to be the ground for condonation of delay. Any observation made orally by a Court cannot be made the ground to support a plea in an action. In any case, after the earlier Supreme Court order dated 17th Dec., 1980 the District Judge, Gurgaon, had discussed the entire matter in detail vide order dated i4 h Sept. 1981, in which it has been held that the decree-sheet was strictly prepared in accordance with the provisions of Order XX rule 6(1) of the Code. The Special Leave Petition against the said order of the District Judge has already been dismissed by the Supreme Court. In view of these circumstances, the petitioners have no right to challenge the decree now in this Court under the garp of the order passed by the executing Court on 20th Feb., 1985. The petitioners are abusing the process of Court and have been successful in their design to delay the proceedings on one pretest or the other.
(3.) Consequently, this revision petition fails and is dismissed with costs which are assessed at Rs. 2,000.00. The parties are directed to appear before the executing Court on 1st March, 1989. Petition dismissed.;