MOHAMED ABDUL KADAR SYED MOHAMMED Vs. MOHAMED THASSIN MOHAMMED MUSTAFA

JUDGEMENT

(1.) THE respondent in this civil miscellaneous second appeal was the second plaintiff in O. S. No. 922 of 1118 M. E. on the file of the District Munsif's Court, nagarcoil, who obtained a mortgage decree in his favour and who in due course of execution proceedings of that decree purchased the hypotheca. The Court sale was held on 30-1-1955 and the respondent-decree-holder and auction purchaser obtained a sale certificate dated 27-8-1955. In C. M. P. No. 2856 of 1956, he applied for delivery of the properties comprised in the sale sanad and obtained a delivery order on 23-3-1956 in his favour. Men the amin entrusted with the task of delivery attempted to execute the. warrant of delivery he was met with obstruction from the two appellants in this appeal. The respondent therefore filed c. M. P. No. 5456 of 1956 in the District Munsif's Court of Nagarcoil, on 14-5-1956 complaining of the obstruction of the appellants and seeking to removal the obstruction and to obtain delivery of the property purchased by him. The obstruction was On 27-3-1956 but the application for removal of obstruction filed by the respondent was presented in the executing Court only on 14-6-1956 long after the period of 30 days prescribed under the Limitation Act for preferring applications for removal of obstruction. On 5-12-1956, the executing Court passed the following order,

(2.) THE respondent preferred an appeal, A. S. No. 75 of 1958, on the file of the subordinate Judge's Court of Nagarcoil, against the order dismissing his petition in e. A. No. 1659 of 1957. It appears that an application was filed before the learned subordinate Judge praying that E. A. No. 1659 of 1957 may be treated and dealt with as one against the judgment-debtor alone, under Order XXI Rule 95 Civil procedure Code. The learned Subordinate Judge acceded to this request, and struck out the names of the obstructers, the appellants, from the record. In the opinion of the learned Subordinate Judge, there was no bar on the part of the respondent to file a second application for delivery against the judgment-debtor; 'his application for delivery, E. A. No. 1659 oa,1. 957, was therefore remanded to the executing Court for fresh disposal.

(3.) THIS civil miscellaneous second appeal has been preferred by the two obstructionists who want the order of the executing Court to be restored.