BALIA, J. - (1.) THE two miscellaneous appeals and one criminal revision arise out of same transaction, which has led dispute between the parties. Hence they are being decided by a common order.
(2.) BRIEFLY stated the dispute arose out of an agreement to sell agricultural land executed by Utma Ram, defendant in favour of Nirmla Devi, plaintiff. The vendor having failed to execute sale-deed in favour of Nirmla Devi Nirmala Devi instituted a civil suit for specific performance of agreement against Utma Ram in Jan. 1986. It was alleged by her that she was put in possession of the suit property under the said agreement and her possession be protected from interference by defendant by grant of a temporary injunction under Order 39 Rule 1 & 2. A temporary injunction was granted in her favour on 30th Oct. 1986. It may be noted that defendant had not put in appearance at the time when the temporary injunction was granted against him and the suit was ultimately decreed ex-parte on 30th Feb. 1987. Somewhere in 1988 the plaintiff decree-holder applied for execution of decree. In Dec. 1988, plaintiff Nirmala Devi also moved an application under Sec. 145 of the Criminal Procedure Code apprehending breach of peace in connection with the possession of the suit property as a result of which the suit property was attached and handed over to receiver on 24. 2. 89. During this period in Jan, 1989, defendant Utma Ram having come to know about the ex-parte decree against him moved an application for setting-aside the said ex- parte decree. The ex-parte decree was set-aside by the order of the trial court dt. 27. 9. 89, and revision against the said order was also dismissed by this court on 4. 10. 90. After ex-parte decree passed against Utma Ram was set-aside on 27. 9. 89 by the trial court. S. D. M. by his order dt. 21. 7. 90 ordered that possession of the suit property be delivered to plaintiff Nirmala Devi by the receiver. In pursuance of that direction, Nirmala Devi was put in possession on 23. 7. 90 and she continued to be in possession upto now. Against the order passed by S. D. O. on 21. 7. 90 for delivery of possession to Nirmala Devi, Utma Ram had preferred a revision before the Sessions Judge who by order dt. 2. 8. 91 came to the conclusion that possession of the disputed property was taken by the receiver from Utma Ram and suit is still subjudice before the civil court. The possession should be delivered back to the person from whom it was taken viz to Utma Ram. Aggrieved with the aforesaid order dated 12. 8. 91 Nirmala Devi had preferred Criminal Revision Petition No. 146/91. The plaintiff had moved another application under Or. 39 Rule 1 & 2 for grant of temporary injunction on 16. 8. 91 for protecting his possession by grant of temporary injunction. It was claimed by the plaintiff that he was in possession of the suit property at the time of filing of the suit and be is presently also in possession as in pursuance of the orders of the S. D. M. , he has been put back in possession in July 23, 1990. This application of the plaintiff was rejected by the trial court by holding that for protecting the possession of plaintiff a temporary injunction was passed on 13th Oct. 1986, that was operative until the decision of suit. Since ex-parte decree has been set-aside and suit has been restored to its original stage, the order dt. 30. 10. 86 still remains in force and therefore, there is no need to pass a second order. It is this order dt. 5. 9. 91 which is subject matter of Miscellaneous Appeal No. 308/91 filed by Utma Ram.
(3.) AFTER the order dt. 5. 9. 91 was passed, the defendant moved another application under Order 39 rule 4 CPC read with Sec. 151 for discharging of interim order dt. 30. 10. 86 which was held to be operative by the trial court's order dt. 5. 9. 91. This application of the defendant was rejected by holding that the order dated 5. 9. 91 which was passed after hearing both the parties is in fact, an order confirming order dt. 30. 10. 86 and in that view of the admitted position, that the present possession of the suit property is with plaintiff since the same was delivered to her by the receiver, the prima facie case in favour of the plaintiff is proved. The court also observed that the finding given in proceedings under Sec. 145 Cr. P. C. are not binding on the Civil Court and therefore defendant cannot derive any benefit out of the same. In view of this the application of Utma Ram under Or. 39 rule 4 CPC was also dismissed on 10. 7. 92 which is subject matter of Civil Miscellaneous Appeal No. 325/92. It was contended by Mr. Jain and Miss. Rao appearing for Utma Ram that order dt. 30. 10. 86 passed in favour of plaintiff by holding prima facie her to be in possession of the property being an ex-parte order passed without giving an opportunity of hearing to defendant, coupled with the fact that on initiation of proceedings under Sec. 145 Cr. P. C. by the plaintiff possession of the suit property was taken by the receiver from the defendant, made it incumbent upon the trial court to have considered all material on record afresh uninfluenced by its decision dt. 30. 10. 86 or by any order under Section 145 Cr. P. C. The trial court was apparently labouring under the impression that the findings which were recorded while passing order of 30th Oct. 1986 did not require reconsideration, in view of the fact that the plaintiff was in possession of the suit property since 23rd July 1990. This approach of the learned trial Judge according to the counsel for Utma Ram was erroneous in law which has resulted in miscarriage of justice. On the other hand Mr. Maheshwari appearing for Nirmala Devi, contended that since plaintiff is admittedly in possession of the suit property since 23rd July 1990, and prior to that date the trial court has found in her favour a prima facie case relating to her possession and passed a temporary injunction which continued to be in force throughout the proceedings and is still in force, it cannot be said that she was not in possession at the time of filing of the suit or even now and therefore orders under challenge in Appeal No. 325/92 and 308/91 do not require any interference. ;