KIRPAL SINGH Vs. KARAM SINGH

JUDGEMENT

(1.) This revision petition is directed against the order of the executing Court dated May 23, 1978, whereby by executing Court refused to issue the fresh warrants of possession in favour of the decree-holder.

(2.) There was a decree in favour of Kirpal Singh, decree-holder against the judgment-debtor Karam Singh, dated September 19, 1974. In the said decree a direction was given that the possession of the vacant plot measuring 10 marals be delivered to the decree-holder after the demolition of the construction raised thereon. When the execution was sought of the said decree, the bailiff demolished only a part of the structure and the remaining structure remained on the plot. However, the bailiff made his report dated March 11, 1978 to the executing Court that the decree had been executed and the vacant possession handed over to the decree-holder. The said report is said to have been signed by the decree-holder as well. After the said report was made by the bailiff, the decree-holder immediately thereafter moved an application dated March 14, 1978, that the possession of the entire plot, as decreed, had not been given to him. That application was resisted by the judgment-debtor and the executing Court relying upon the report of the bailiff passed the impugned order dated May 23, 1978. Earlier, the decree-holder had filed an appeal against the said order of the executing Court to the District Judge. The said appeal was accepted vide order dated February 9, 1979, and the case was sent back to the executing Court with a direction to issue fresh warrants of possession in favour of the decree-holder against the judgment-debtor. It was further directed therein that the possession of the structure standing on the same and removing the malba. Against the said order of the District Judge, the judgment-debtor filed Civil Revision Petition No. 488 of 1979, which was allowed by this Court on July 18, 1979. It was held therein that the District Judge had no jurisdiction to entertain the appeal. The course open to him was to return the memorandum of appeal to the appellant. As a consequence, the decree-holder applied to the District Judge for returning the memorandum of appeal which was returned to him vide order dated January 29, 1980. Immediately thereafter the decree-holder filed the present revision petition in this Court on February 7, 1980. The delay in filing this revision petition in this Court was condoned at the time of the motion hearing vide order dated September 8, 1980.

(3.) The learned counsel for the respondent judgment-debtor submitted that once the bailiff had made the report that the decree had been executed and the possession had been delivered to the decree-holder complete in all respects, the question of issuing fresh warrants of possession did not arise. Thus, argued the learned counsel, the view taken by the executing Court was perfectly valid and no interference was called for in this revision petition. In support of the contention, the learned counsel relied upon Jagdish Nath v. Nafar Chandra, 1931 AIR(Cal) 427 and Shew Bux v. Bengal Breweries Ltd., 1961 AIR(SC) 137.