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Paikamma and anr. Vs. Maroti - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 140 of 1981
Judge
Reported inAIR1983Bom363; 1983(1)BomCR552
ActsCode of Civil Procedure (CPC), 1908 - Sections 151
AppellantPaikamma and anr.
RespondentMaroti
Advocates:G.J. Ghate, Adv.
Excerpt:
.....matter which is an offence under either of sections 124-a, 153-a, 153-b, 292, 293, 295a of i.p.c., - the order of the court is clearly contrary to the law. the same principle will apply in respect of the order passed by the same court regarding stay as the decree for delivery of possession is clearly executed. the learned judge had clearly exercise jurisdiction which was not vested in him by law and the order is clearly illegal and it cannot be supported......petitioners for possession of the suit lands and he directed an enquiry under court. 20, r. 12, civil procedure code regarding future mesne profits. regular civil appeal no. 23/1979 preferred by respondent maroti was dismissed on 7-1-1981 by the learned assistant judge, chandrapur. similarly appeal no. 3/1979 filed by the mother and brother of maroti regarding mesne profits was also dismissed by the same judge by a common judgment. thereafter the petitioners filed execution petition for obtaining of the two suit lands. they obtained the orders for the service of the special process server on 27-1-1981 and they obtained actual possession of the land on 28-1-1981 at about 10a. m.2. it appears that on this very day respondent maroti came to know that the bailiff had come for handing over.....
Judgment:
ORDER

1. Petitioners Paikamma and Sitamma filed regular civil suit No. 121/1974 against respondent Maroti, his brother and his mother for possession of the two disputed fields and for other reliefs. On 31-11-1978 the learned Joint Judge, Jr. Dn. Chanrapur passed a decree in favour of the petitioners for possession of the suit lands and he directed an enquiry under Court. 20, R. 12, Civil Procedure Code regarding future mesne profits. Regular Civil Appeal No. 23/1979 preferred by respondent Maroti was dismissed on 7-1-1981 by the learned Assistant Judge, Chandrapur. Similarly appeal No. 3/1979 filed by the mother and brother of Maroti regarding mesne profits was also dismissed by the same judge by a common judgment. Thereafter the petitioners filed execution petition for obtaining of the two suit lands. They obtained the orders for the service of the special process server on 27-1-1981 and they obtained actual possession of the land on 28-1-1981 at about 10A. M.

2. It appears that on this very day respondent Maroti came to know that the bailiff had come for handing over possession and he approached the civil court at Chandrapur and requested for stay of the execution and it appears further that the learned Judge passed an order of ad interim stay of execution under Order 41. Rule 5 (ii) of the Civil Procedure Code. But it appears further that before the stay order was actually received. the petitioners had already got actual possession of the land from Maroti.

3. It is on account of these facts that on 29-1-1981 respondent Maroti gave an application in the trial court at Ex. 13 in regular Darkhast No. 6/1981 for restoration of possession and this application was made under S. 144 of the Civil Procedure Code read with Section 151 of the Civil Procedure Code. The present petitioners objected to the petitioner filed by respondent Maroti. After considering the material before him the learned Judge gave a clear finding that the provisions of Section 144 of the Civil Procedure Code were not applicable to the facts of the present case. However, he held that he can restore the possession of the land to Maroti under inherent powers under S. 151 of the Civil Procedure Code and so he passed an order on 3-2-1981 that the decree holders shall put the judgment debtor in possession of the suit fields with the standing crops. According to the learned Judge no act of the Court should harm the litigants. Feeling who are decree holders have filed this revision application.

4. It is quite clear that the learned Judge has given a finding that Section 144 of the Civil Procedure Code is not applicable to the facts of the instant case. But the learned Judge has passed the order by invoking aid of Section 151 of the Civil Procedure Code. The order of the Court is clearly contrary to the law. When the possession of the land was already delivered to the decree holders before the stay order reached the bailiff who was entrusted with the work of handing over of possession to the decree holder petitioner, the stay order became inoperative and ineffective and the possession could not be restored even under inherent powers. Shri G. J. Ghate, advocate, appearing on behalf of the petitioner urged before me that even the stay order was passed after this was actually delivered to the petitioner and part from this even if it is assumed fro a moment that the stay order was actually passed before possession was actually delivered it is undisputed fact that it could not be communicated to the bailiff before the possession was actually delivered to the decree holders petitioners. It is a fact of common knowledge that even where a superior court issues a stay order if the decree is executed before the stay order of the superior court reaches the original court. the stay order becomes inoperative. The same principle will apply in respect of the order passed by the same court regarding stay as the decree for delivery of possession is clearly executed. I do not think that any jurisdiction is vested in the trial court even under inherent jurisdiction to restore possession of the land to respondent Maroti. The learned Judge had clearly exercise jurisdiction which was not vested in him by law and the order is clearly illegal and it cannot be supported. The result is that this revision application is allowed. The impugned order of the trial court dated 3-2-1981 directing the decree holders to put the judgment debtor Maroti in possession of the suit fields with standing crops quashed and the application of Maroti dated 29-1-1981 is dismissed. Rule is made absolute. But. as there is no appearance on behalf of the respondent, there will be no order of costs of this revision application.

5. Rule made absolute.


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