Suraj Mal vs Birmati and Others

L.N. Mittal, J.—Decree-holder Suraj Mai has filed the instant revision petition u/s 115 of the CPC assailing order dated 09.09.2009 passed by the Executing Court i.e. Additional Civil Judge (Senior Division), Panipat.

Suit filed by the petitioner against respondents was decreed on the basis of compromise, according to which the judgment-debtors were to remove their boundary wall on northern side to the extent of 3'' width and 54'' in length. The petitioner filed execution petition, wherein after police help, according to the report of Bailiff, possession of 3'' wide area as per decree was given to the petitioner. However, the petitioner filed objections against the report of Bailiff, alleging that the possession had not been delivered to him and his thumb impressions had been obtained on blank paper by the Bailiff. Issues were framed on the said objections and after recording evidence, the Executing Court, vide impugned order dated 09.09.2009, held that possession has been delivered to the petitioner as per decree and the execution petition was accordingly filed as satisfied.

Feeling aggrieved, the decree-holder has filed the instant revision petition.

I have heard learned Counsel for the petitioner and perused the case file, including the execution file, which has been received pursuant to the orders of the preceding dates.

Perusal of the report of Bailiff on the warrant of possession reveals that possession of 3'' wide area was delivered to the petitioner decree-holder in the presence of police. Admittedly, the said report has been thumb marked by the petitioner. The report has been signed by many witnesses including Ex-Member Panchayat, Chowkidaar and son of the petitioner himself besides Station House Officer of concerned police station. However, in support of his objections, the petitioner except entering into the witness-box himself, has not led any other evidence to substantiate his plea that possession was not delivered to him as per report of the Bailiff. The petitioner could have easily examined the witnesses, who witnessed the report of the Bailiff regarding delivery of possession to the petitioner. The plea of the petitioner, that he is illiterate, cannot be accepted because the report has been signed by his son in English language and it would depict that petitioner''s son is educated person and was present at the time of delivery of possession and he also signed the report. There is also no reason why the other witnesses including Chowkidaar and Ex-Member Panchayat would falsely attest the report. Moreover, none of them has been examined by the petitioner in support of his version that possession was actually not delivered to him. Bailiffs report regarding delivery of possession to the petitioner has also been attested by Station House Officer of the concerned police station. There is thus no material on record to doubt the report of Bailiff regarding delivery of possession to the petitioner in compliance with decree in question. There is thus no infirmity or illegality in the impugned order of the Executing Court.

For the reasons recorded herein above, I find no merit in the instant revision petition, which is accordingly dismissed in limine.