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Mangilal Vs. Kailash Chandra Sharma - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 504 of 1981
Judge
Reported in1982WLN78
AppellantMangilal
RespondentKailash Chandra Sharma
DispositionPetition dismissed
Cases ReferredSham Lal v. Jaswant (supra
Excerpt:
.....lal on 16-1-1979. in these circumstances, the high court allowed the restitution of possession to kailash chand under section 151 c.p.c. and not under section 144 c.p.c.;the delivery of possession to govind lal itself was held to be illegal by the trial court in as much as a stay order against the decree for eviction had already been issued by the appellate court. the question of the plaintiff petitioner being, in such circumstances, to be a bonafide transferee, is out of question.;(b) civil procedure code - section 115--no illegality or material irregularity committed--held, no ground for interference under section 115 is made out;during the pendency of the revision, govind lal inducted plaintiff as a tenant on 24-5-79 in my view of the matter, it cannot be said that the courts below..........govind lal obtained possession of the suit shop in execution of the decree on 16-1-1979. kailash chand filed an application for restitution of possession. but the same was disallowed by the executing court. kailash chand, thereafter, filed a revision in this court and the revision was contested by govind lal. this court, however, on 6-5-1981 allowed the revision taking the view that after the communication of stay order passed by the appellate court, the trial court had no jurisdiction to deliver possession to govind lal in execution of the decree. it was further observed that the petitioner kailash chand was entitled to restoration of possession under section 151 c.p.c. as it was a mistake of the court in giving possession to govind lal. in the mean time, during the pendency of the.....
Judgment:

N.M. Kasliwal, J.

1. This is a plaintiff's revision against the order of the Additional District Judge No. 5, Jaipur City Jaipur, dated 13-10-1981 upholding the order of the learned Munsiff Jaipur East, Jaipur dated 22-9-1981 dismissing the plaintiff's-application under Order 39 Rule 1 and 2 C.P.C.

2. One Govind Lal obtained an ex parte decree for evidence against Kailash Chand defendant-non-petitioner. Kailash Chand defendant non-petitioner filed an appeal against the decree for eviction and obtained a stay order from the appellate court on 7-9-1978, which was communicated to the trial court on 16-9-1978. Inspite of the above stay order, it appears that Govind Lal obtained possession of the suit shop in execution of the decree on 16-1-1979. Kailash Chand filed an application for restitution of possession. But the same was disallowed by the executing court. Kailash Chand, thereafter, filed a revision in this Court and the revision was contested by Govind Lal. This Court, however, on 6-5-1981 allowed the revision taking the view that after the communication of stay order passed by the appellate court, the trial court had no jurisdiction to deliver possession to Govind Lal in execution of the decree. It was further observed that the petitioner Kailash Chand was entitled to restoration of possession Under Section 151 C.P.C. as it was a mistake of the court in giving possession to Govind Lal. In the mean time, during the pendency of the revision, Govind Lal let out the suit shop to the plaintiff petitioner on 24-5-79. Kailash Chand defendant-non-petitioner wanted to take possession in pursuance to the order of the High Court dated 6-5-81. The petitioner Mangilal filed the present suit for injunction restraining the defendant Kailash Chand from taking over the possession of the suit shop and an application under Order 39 Rule 1 and 2 C.P.C. Both the lower courts dismissed the application for temporary injunction filed by the petitioner. In these circumstances, the plaintiff Mangilal has filed this revision.

3. It is contended by Mr. Patodia, learned Counsel for the petitioners that the petitioner Mangilal was a bonafide transferee in possession over the suit property. He had no knowledge about any litigation between Govind Lal and Kailash Chand and it was not proper for the courts below to have refused injunction without making any inquiry in the suit. Reliance in this regard is placed on (1) Shamlal v. Jaswant Kaur A.I.R. 1980 Delhi 171, in which it was held:

Where on eviction of a tenant in execution of an ex parte decree for eviction, another tenant who was unaware of the litigation was inducted and the earlier decree for eviction subsequently reversed, the evicted tenant could not be granted possession when the tenant subsequently inducted opposed it. He would be entitled to protection of Section 14. To such a case, Section 144, C.P.C. was not applicable.

4. It is also argued that though the defendant non-petitioner had not filed any reply, the lower courts took into consideration the facts which were not supported by any document placed on record.

5. Mr. Purohit, learned Counsel for the defendant non-petitioner on the other hand contended that it was not a case of restitution Under Section 144 C.P.C. but was a case where Kailash Chand was given possession Under Section 151 C.P.C. as Govind Lal had obtained possession by mistake of the Court. It is also contended that there is no dispute about the facts and all these facts mentioned by the Courts below are contained in the judgment of the High Court dated 6-5-1981.

6. I have given my careful consideration to the arguments advanced by learned Counsel for both the parties. In this case, an ex parte decree was obtained by Govind Lal against the defendant non-petitioner Kailash Chand. Before this decree could be executed, he had gone in appeal and the appellate court had granted stay of the decree for eviction on 7-9-1978. That stay order passed by the appellate court was communicated to the trial court on 16-9-78. Even thereafter the trial court gave possession to Govind Lal on 16-1-79. Kailash Chand first filed an application before the trial court on 18-1-79 for restoration of possession but the same was dismissed by the trial court. Kailash Chand then filed a revision in this Court, which was allowed on 6-5-81. The High Court took the view that it was a mistake committed by the court in granting possession to Govind Lal. The stay order granted by the appellate court was communicated to the trial court on 16-1-78 and thereafter, there was no question of giving possession to Govind Lal on 16-1-1979. In these circumstances, the High Court allowed the restitution of possession to Kailash Chand Under Section 151 C.P.C. and not Under Section 144 C.P.C. The case Sham Lal v. Jaswant (supra) relied upon by the learned Counsel for the petitioner was a case of Section 144 C.P.C. and not a case like the present one. In the facts of the present case, the delivery of possession to Govind Lal itself was held to be illegal by the trial court in as much as a stay order against the decree for eviction had already been issued by the appellate court. The question of the plaintiff petitioner being, in such circumstances, to be a bonafide transferee, is out of question. A revision was already pending before this Court and during the pendency of the revision, Govind Lal inducted plaintiff as a tenant on 24-5-79. In my view of the matter, it cannot be said that the courts below have committed any error of Jurisdiction or material irregularity in the exercise of their jurisdiction. Even if the lower courts may have committed an error of law, it cannot be a ground for interference Under Section 115 C.P.C. In my view the lower courts have not committed any error of law much less any error of jurisdiction.

7. In the result, I find no force, in this revision and the same is hereby dismissed.


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