Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 5220 of 2019 Petitioner :- Ram Bahadur Singh Respondent :- Harihar Nath And 7 Others Counsel for Petitioner :- Krishna Nand Rai,Vijay Anand Rai
Hon'ble Manoj Kumar Gupta,J.
Supplementary affidavit filed today is taken on record.
The petitioner before this Court is judgment debtor. The decree which is under execution is dated 27.08.2015 passed by this Court in First Appeal No.387 of 2007 arising out of Original Suit No.242 of 1998. The operative part of the judgment of this Court is as follows:
“In so far as issue no. 8 is concerned, the relief of possession is moulded to the extent that the plaintiff/appellant has a right to get an open possession over 3 decimal of plot no. 1028, description of which has been given in the sale certificate dated 28.5.1986. The constructions, if any, existing over the said portion of the plot in dispute, the same are liable to be removed and the open possession of the said plot is to be restored to the plaintiff/appellant.
A decree for permanent prohibitory injunction is hereby issued in favour of the plaintiff/appellant against the defendants over 3 decimal of plot no. 1028 which is described in the sale certificate dated 28.5.1986 as follows:-
^^uke ekStk vkSB ua0 jdck jrlM+ ijxuk 1028 1&04 fM0 eas doys dksikphV 'kdhZ 3 fM0 uhyke fd;k ftyk&cfy;k x;k gSA tkfuc if'pe o mRrj ds dksus ij iwjc if'pe 5 yBk rFkk mRrj nf{k.k 6 yBk tUVh tjhc lsA^^ With the above finding, Suit No. 242 of 1998 (Harihar Nath Ram and others vs. Lallan Singh and Others) is decreed and the appeal is allowed in part."
The petitioner filed an application 15-C before the executing court that the property, of which possession is to be delivered, should be directed to be located by survey by Amin Commissioner as the same is not identifiable. The said application has been rejected by the executing court observing that the property, of which possession is to be delivered to the decree holder, is clearly identifiable as its boundaries are mentioned in the sale certificate as well in the judgment passed by this Court.
Counsel for the petitioner submitted that plot no.1028 ad- measures 3 decimal, out of which only 1.04 decimal was auctioned. The possession of only 1.04 decimal is to be delivered. He submitted that the portion of the land auctioned measuring 1.04 decimal has to be identified and therefore the court below erred in rejecting the application.
As noted above, the boundaries of the land, of which possession is to be delivered to the decree holder, are clearly mentioned in the sale certificate as well as judgment of this Court. The Court Amin who will be deputed to go on the spot to deliver possession, will definitely have to locate the land, in accordance with the boundaries mentioned in the sale certificate.
Accordingly, the instant petition is disposed of by providing that after a writ of possession is issued and the Court Amin goes to the spot to deliver possession, he will exercise due diligence in properly identifying the property of which possession is to be delivered. Only thereafter, he will deliver the possession to the decree holder. In case, the petitioner has any objection to the property identified by the Court Amin for delivering possession, it shall be always open to him to bring the said fact to the notice of the executing court. In that event, it goes without saying that the executing court will have to examine and ensure that the possession is delivered over the property which is mentioned in the sale certificate and over no other property.
With the above observations and clarifications, the instant petition stands disposed of.
(Manoj Kumar Gupta, J.) Order Date :- 26.7.2019 Atul