9911796707
TMI Blog2003 (10) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Controller, Jalandhar on 14.2.1997. About three years later on 15.5.2000, the said Rent Controller allowed the said application for ejectment and directed the respondents-tenants to hand over the possession of shop within three months. It is to be noted herein in the said eviction petition one of the specific issues raised pertained to the correctness of the site plan attached to the ejectment petition. The onus of proving this issue was on the respondents-tenants, but it is seen from the records that they did not address any argument in regard to the same, accordingly the trial court decided the said issue against the respondents. Against the said judgment of the learned Rent Controller, Jalandhar, the respondents filed an appeal before the Appellate Authority, Jalandhar who dismissed the said appeal affirming the order of the Rent Controller by his order dated 7.2.2001. The aggrieved tenants then preferred a revision petition before the High Court which came to be dismissed on 8.2.2001 granting the respondents time till 31.8.2001 to vacate the suit premises. The respondents then filed a civil miscellaneous application for recalling the said order of dismissal of their revisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After considering the said objection, the executing court issued a warrant of possession for delivery of the possession of the property. This order issuing the warrant of possession was made by the executing court on 12.11.2002. The respondents on 16.11.2002 filed another application calling upon the executing court to first decide the identity of the property before issuance of warrant of possession on 21.11.2002. In that background, the executing court appointed a Bailiff of the court with the following directions: "As following property, disputed property, is in possession of JD and the possession of the same be handed over to the decree holder. You are directed that in case any person who bound by it refused to vacate then he should be evicted from the property." On 26.11.2002, the Bailiff submitted a report that the warrant of possession could not be executed because of some dispute. On 3.12.2002, the executing court passed further orders directing the issuance of warrant of possession for 24.12.2002. The respondents challenged the said issuance of warrant of 3.12.2002 by way of a revision petition before the High Court on which the High Court was pleased to issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he evidence of the first respondent extracted herein above clearly shows that he admitted the correctness of the site plan. Against the said eviction order, an appeal was filed before the appellate authority, a revision before the High Court and an SLP before this Court and in none of those proceedings this issue was agitated. Of course, in our opinion, it could not have been agitated also in view of the admissions made by the first respondent. Inspite of all these proceedings right up to this Court wherein the respondents concurrently failed and inspite of having given an undertaking to the High Court at the time of obtaining extension of time to vacate the premises by 30.4.2002, the respondents chose not to hand over possession of the property which prima facie, in our opinion, indicates disobedience of the orders of the High Court which directed the tenants to file an undertaking assuring the handing over of possession of the property by a specified date. The above attitude of the respondents compelled the appellant to file an execution petition in which repeated attempts were made by the respondents to again revive the issue of identity of the property as also the description ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised in the appeal before the appellate authority, in the revision before the revisional authority, namely, the High Court or in the SLP before this Court. In such circumstances, we fail to understand how this very issue can be re- agitated in the execution proceeding by the tenants. It is also to be noticed that the executing court has rightly observed that re- opening of this issue would amount to asking that court to go behind the decree which is impermissible in law. We must note this finding of the executing court is not even noticed by the High Court in the impugned order. The High Court also did not take into consideration the reasoning of the co-ordinate bench of the same High Court in the dismissal order made in C.R.P.No.5175/2002 on 29.10.2002 which while rejecting the similar contention of the respondents had specifically observed the attempt of the tenants was with a view to delay their ejectment. In such a factual background, we think the impugned judgment is wholly erroneous having no legal or factual basis to sustain it. We also must notice that the High Court in the impugned order has made an observation which in effect, in our opinion, makes the execution proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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