Smt Laxmi Devi v. Shrimohdumar

1. By way ofthe presentpetitionunder Article 227 ofthe Constitution of India, tlie petitioner tias assailed tiie order dated 23'" April, 2013 wiiereby thepltitioner'sapplicationunderOrderXIV,Rule5CPCwasdismissed.

2. By virtue of the judgment and decree dated 23'" January, 2012 m favour ofthe petitioner, the petitionerfiled an execution proceeding wherein aBailiff was appointed by the Court and the possession ofthe property in question was handed over to the petitioner. Thereafter, the respondent filed objections as well as the application tmder Order XXI, Rule 97 read with section 151 CPC. The respondent was not aparty to the suit or the execution proceedings. It is sated that in fact, the judgment-debtor/defendant in the main suit did not file any objection inthe execution petition.

3. On hearing the parties on the said application, the Executing Court on 8'^^ March, 2013 framed the following issues: Page 1 of[3] CM(WNo.721/2013 2013:DHC:8285 •V

(i) Whether the applicant/objector Mohd. Umar was in possession of the property in question at the time of execution of warrants of possession of the decree passed in suit bearing no. 15/9 of 1989 entitled Smt. Lakshmi Devi V. Ram Chander? OPA

(ii) Whether the applicant/objector Mohd. Umar was dispossessed from the property in question in execution of the decree in the above noted case? OPA

(iii) Whether the applicant/Objector is entitled to put into possession ofthe property in question? OPA

4. Thereafter, the petitioner filed the application under Order XIV, Rule 5 CPC for modification oftwo issues so framed, as under:

(i) Whether the applicant/objector Mohd. Umar was in possession of the property in question "as tenant" at the time of execution of warrants of possession of the decree passed in suit bearing no. 15/9 of-1989 entitled Smt. Lakshmi Devi v. Ram Chander? OPA

(ii) Whether the applicant/objector Mohd. Umar was dispossessed from the property in question in execution ofthe decree "illegally" in the above noted case? OPA

5. After the arguments on the said application, the same was dismissed by the Executing Court vide order dated April 23, 2013. Hence the present petition on the ground, mainly, challenging thejurisdiction of the Executing Court to fi-ame issues at such stage, and also to the issues framed as such.

6. During the course of hearing, the learned counsel appearing on behalf of the petitioner has not denied the factual position that the decree was passed in favour of the petitioner only in respect of 7 ft. x 11 ft. land, however, the petitioner has taken possession of the built up property admeasuring 28 ft. x 17 ft. i.e. the portion in respect of which the decree was:M(M)No.721/2013 Page 2of[3] passed as well as other portion occupied by the objector who was dispossessed by execution of decree.

7. Without observing and deciding anything on merits, I am of the view that the Executing Court in view of the facts and circumstances has framed the correct issues. Therefore, the prayer sought by the petitioner in the present case cannot be allowed.

8. The petition is accordingly dismissed. Pending application also stands disposed of lOHAN SINGH)

JUDGE JULY 30, 2013