CHHATIA PALEI Vs. ADDL DISTRICT

JUDGEMENT

(1.) THE petitioner in the present writ application has sought to challenge the Order dated 31.3.1998 passed by the District and Sessions Judge, Nayagarh in C.R. No. 36/11 of 1997 allowing the said revision and reversing the order dated 23.12.1996 passed in M.J.C. and No. 30/1996 under Section 47 of the Code of Civil Procedure arising out of Execution Proceeding No. 3 of 1994 by the Court of Civil Judge (Junior Division), Nayagarh who had allowed the objection of the petitioner under Section 47 C.P.C. and hold that the decree passed in O.S. No. 24 of 77, was in executable.

(2.) LEARNED Counsel for the petitioners has challenged the impugned order passed by the Addl. Dist. and Sessions Judge, Nayagarh on the following grounds:

(3.) MR . Mohapatra, learned Counsel for opposite party No. 3, on the other hand, submitted that the writ petitioners 1 and 2 and opposite party No. 4 (brother of petitioner No. 1) are judgment -debtors in decree dated 31.3.1981 passed in T.S. 24/77 -1 wherein the present opposite party No. 3 Dayanidhi Dash was the plaintiff -decree holder. It is submitted that T.S. No. 24/77 -l was filed with the prayer for issue of perpetual injunction against the defendants and restraining them from going over the suit land and creating disturbance in his possession of the plaintiff with respect to the said suit land. In the 4th paragraph of the decree dated 31.3.1981 in favour of the opposite party No. 3 has been held as follows: In this suit, a Civil Court Commissioner was deputed on the petition of the plaintiff for local inspection of the suit land after giving due notice to the parties. The Commissioner inspected the land and submitted his report. In support of the suit, the said Commissioner has been examined as P.W.2 and his report dated 14.8.1978 marked as Ext. -8, clearly reveals that the plaintiff is the peaceful owner and possessor over the suit land. And therefore, the Civil Court in the judgment directed that the defendants are hereby permanently injuncted from going over the suit land and from creating any disturbance in the possession of the plaintiff. Mr. Mohapatra submitted that opposite party No. 3 while being temporarily absence from his village, enabled the petitioners and opposite party No. 4 to trespass into the suit house and to forcibly take possession of the same on 16.8.1994. The opposite party No. 3, on his return to his village and on realizing the mischief created by the petitioners, opposite party No. 4 was compelled to file Execution Case No. 3/94 on 13.9.1994. Sri Mohapatra submitted that the petitioners and opposite party No. 4 did not appear in the suit proceeding inspite of the valid notice for which, a notice for delivery of possession was issued. But the process server could not serve the notice of delivery of possession since the petitioners and opposite party No. 4 threatened the process server with dire consequence and being armed with deadly weapon. His further allegation is that opposite party No. 3 - Dayanidhi Dash filed MJC No. 11/1996 for sending police force along with the process server and while the said applicant was pending consideration, MJC No. 30/1996 was filed by the present petitioners and opposite parity No. 4, before the executing Court claiming that the decree was inexecutable. The M.J.C. No. 30 of 1996 came to be allowed by an order dated 23,12.1996 on a finding that in the absence of a decree for delivery of possession, the possession cannot be delivered. The opposite party No. 3 challenged the aforesaid order before the Addl.District and Sessions Judge in C.R. No. 36/ 11 of 1997 and the same has came to be allowed by an order dated 31.3.1998 with direction to the executing Court to proceed with the execution proceeding. It is this revisional order which is now come to be challenged in the present writ application and it is alleged that the writ application contains wrong genealogy as well as incorrect facts.