1. The present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the applicant-original judgment creditor to quash and set aside the impugned order passed by the learned executing Court-learned 2nd Additional Judge and Small Causes Court at Vadodara dated 11/05/2001 below Exh. 13 in Execution Petition No. 13/2001 as well as the subsequent order passed below Exh. 35 dated 08/06/2001.
2. The facts leading to the present Civil Revision Application in a nutshell are as under;
2.1. The applicant instituted Rent Suit No. 150/1983 against the respondents-judgment debtors on the ground of arrears of rent. It appears that the said suit came to be decreed and eviction decree came to be passed against the respondents- judgment debtors. It appears that thereafter the applicant- judgment creditor filed Rent Darkasht No. 83/1989, which came to be dismissed for non-prosecution in the year 2000. It appears that thereafter the applicant-judgment creditor preferred Execution Petition No. 13/2001 and the learned executing Court directed to issue possession warrant on 20/04/2001 making it returnable on 04/05/2001. It is the case on behalf of the applicant-judgment creditor that as such the said possession warrant came to be executed with the police protection on 04/05/2001 and possession of the suit property was taken over and was handed over to the applicant- judgment creditor and thus the possession warrant came to be implemented and executed. It appears that thereafter respondent no. 5 alone preferred Exh. 13 in Execution Petition No. 13/2001 for police protection and seeking maintenance of the possession of the suit property contending that the possession is still with him and the same has not been taken over and pursuant to the possession warrant his possession is likely to be disturbed and/or taken away. The said application was submitted on 08/05/2001. The learned executing Court passed an interim order on 11/05/2001 directing to grant police protection/'bandobast' to the respondents-judgment debtors to protect their possession. It is the case on behalf of the applicant-judgment creditor that the Police Inspector addressed one letter dated 10/05/2001 showing the inability to execute the order dated 08/05/2001 by submitting that possession has already been handed over to the applicant-judgment creditor in compliance with the earlier order of issuance of possession warrant. The Police Inspector also submitted that there is likelihood of breach of peace and, therefore, police has locked the suit premises. It appears from the record that the applicant-judgment creditor filed reply at Exh. 21 submitting that possession of the suit premises has already been taken over pursuant to the earlier possession warrant issued. Despite the same and by observing that as the appeal against the possession warrant was pending, the applicant-judgment creditor could not have obtained the possession warrant and the same could not have been executed, the learned executing Court sent the yadi to the police by directing to hand over possession of the suit premises to the respondent no. 5- judgment debtor and for that the bailiff was required to give police protection and possession was required to be handed over to the respondent no. 5-judgment debtor and consequently directed to handover possession to the respondent no. 5-judgment debtor. It appears that while passing the impugned order the learned executing Court has observed that if it was pointed out that the appeal has been preferred by other party the Court might not have issued possession warrant in the Execution Petition and, therefore, in effect the learned executing Court virtually set aside the earlier order of issuance of possession warrant while deciding the application Exh. 13. Being aggrieved and dissatisfied with the impugned order passed by the learned executing Court-learned 2nd Additional Judge and Small Causes Court at Vadodara dated 11/05/2001 in Execution Petition No. 13/2001 the applicant- original judgment creditor has preferred the present Civil Revision Application. It appears that by the interim order the learned Single Judge directed the parties to maintain status- quo and on misinterpreting the order of status-quo, respondent no. 5 submitted the application, Exh. 35 to restore the possession to him by submitting that this Court has vacated the interim order. The learned trial Court passed the order dated 08/06/2001 below Exh. 35, which is also stayed by this Court.
3. Shri M.T.M. Hakim, learned advocate appearing on behalf of the applicant-judgment creditor has vehemently submitted that while passing the impugned order below Exh. 13 the learned executing Court has not properly appreciated and considered the fact that as such pursuant to the earlier order passed by the learned executing Court the decree was already executed and possession was taken over by the applicant- judgment creditor. It is further submitted that even the impugned order passed by the learned executing Court below Exh. 13 is beyond the scope and the relief prayed in the said application. It is submitted that as such an incorrect statement was made while submitting the application Exh. 13 that possession of the suit property is still with respondent no. 5. It is submitted that while deciding the application, Exh. 13 the learned executing Court has virtually set aside the earlier order passed by the very Court issuing possession warrant, by holding that such an order of issuing possession warrant was not proper and/or legal. It is submitted that while deciding the application, Exh. 13 the learned executing Court as such was not required to consider the legality and validity of the earlier order passed by the very Court issuing possession warrant. It is further submitted that even the order passed by the learned executing Court below Exh. 35 is also contrary to the interim order passed by this Court and, therefore, it is requested to quash and set aside the impugned orders.
4. Shri Bhut, learned advocate appearing for Shri Nilak Shah, learned advocate appearing on behalf of the respondent- judgment debtor has requested to pass an appropriate order.
5. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that while deciding the application, Exh. 13 the learned executing Court as such was not required to consider the legality and validity of the earlier order directing to issue possession warrant. It is also required to be noted that even otherwise if it was the case on behalf of the applicant-judgment creditor that the decree has been fully implemented and executed, in that case, as such the applicant-judgment creditor was required to submit an appropriate application before the learned executing Court submitting that as the decree has been satisfied the same is required to be certified as having been executed and on that the learned executing Court was required to dispose of the Execution Petition. It is an admitted position that the Execution Petition seems to be still pending. Even the contention on behalf of respondent no. 5 whether the earlier order dated 20/04/2001 directing to issue possession warrant was legal and/or just and/or proper or not was also required to be considered by the learned executing Court. In view of the aforesaid facts and circumstances of the case, this Court is of the opinion that the present Civil Revision Application can be disposed of by directing the learned executing Court to consider the following issues;
(i) Whether the earlier order passed by the learned executing Court directing to issue possession warrant was just and proper or not?
(ii) Whether, if the case of the applicant-judgment creditor is accepted that the possession warrant has already been executed and the possession is already handed over, the decree has been satisfied or not and consequently the Execution Petition is required to be disposed of or not?
5.1. If it is held after hearing the parties that the earlier order of issuance of possession warrant was not proper and/or was not required to be passed, in that case, the learned executing Court is required to consider the consequences of such an order and consider the case of the applicant-judgment creditor that the the decree has been executed and possession has been taken over accordingly. Till then, parties are directed to maintain status-quo as ordered earlier.
6. In view of the above and for the reasons stated hereinabove, the impugned order passed by the learned executing Court below Exhs. 13 and 35 are hereby quashed and set aside and the matter is remanded to the learned executing Court for passing an appropriate order in accordance with law and on its own merits and to consider the following issues
(i) Whether the earlier order passed by the learned executing Court directing to issue possession warrant was just and proper or not?
(ii) Whether, if the case of the applicant-judgment creditor is accepted that the possession warrant has already been executed and the possession is already handed over, the decree has been satisfied or not and consequently the Execution Petition is required to be disposed of or not?
after giving an opportunity to all the concerned. The aforesaid exercise shall be completed within a period of six months from the date of receipt of the present order. Till then, parties are directed to maintain status-quo as ordered earlier, which has been continued till date. Rule is made absolute to the aforesaid extent. No cost.
CIVIL APPLICATION Nos. 6566/2001 & 7417/2006 In view of dismissal of Civil Revision Application No. 542/2001, no order is required to be passed in Civil Application Nos. 6566/2001 and 7417/2006 and the same are ordered to be disposed off.
Direct service is permitted.
(M.R. SHAH, J.)
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