Smt Laxmi Devi (Deceased) Thr Her Lr Shri Shiv Narain v. Shri Mohd Umar

J % + p IN THE HIGHCOURTOF DELHIAT NEW DELHI Order decided on: July 30, 2013 CMfM^No.721/2ni3 & C.M-No.10961/2013 SMTLAXMIDEVI(DECEASED)THRHERLR SHRI SfflV NARAIN , , Through Mr.DaljinderSingh,Adv. versus SHRIMOHDUMAR ... Respondent Through Mr.S.D.Ansari,Adv. with Mr.I.Ahmed, Adv. CORAM: HON'BLEMR. JUSTICEMANMOHANSINGH MANMOHAN SINGH, J. (ORAL)

¶1By way ofthepresentpetitionunderArticle227 ofthe Constitutionof India, tlie petitionertias assailedtiie order dated 23'" April, 2013 wiiereby thepltitioner'sapplicationunderOrderXIV,Rule5CPC was dismissed.

¶2By virtue of the judgment and decree dated 23'" January, 2012 m favourofthe petitioner,the petitionerfiledan executionproceedingwherein aBailiffwas appointedby the Court and the possessionofthe propertyin questionwas handedover to the petitioner.Thereafter,the respondentfiled objectionsas well as the applicationtmder Order XXI, Rule 97 read with section151 CPC.The respondentwas notapartyto the suitor the execution proceedings.It is sated that in fact, the judgment-debtor/defendantin the mainsuitdid not file any objectioninthe executionpetition.

¶3On hearingthe partieson the saidapplication,the ExecutingCourton 8'^^ March,2013 framedthe followingissues: Page 1 of3 CM(WNo.721/2013 •V

(i) Whether the applicant/objector Mohd. Umar was in possession of the property in question at the time of execution of warrants of possession of the decree passed in suit bearing no. 15/9 of 1989 entitled Smt. Lakshmi Devi V. Ram Chander? OPA

(ii) Whether the applicant/objector Mohd. Umar was dispossessed from the property in question in execution of the decree in the above noted case? OPA

(iii) Whether the applicant/Objector is entitled to put into possession of the property in question? OPA

¶4Thereafter, the petitioner filed the application under Order XIV, Rule 5 CPC for modification of two issues so framed, as under:

(i) Whether the applicant/objector Mohd. Umar was in possession of the property in question "as tenant" at the time of execution of warrants of possession of the decree passed in suit bearing no. 15/9 of-1989 entitled Smt. Lakshmi Devi v. Ram Chander? OPA

(ii) Whether the applicant/objector Mohd. Umar was dispossessed from the property in question in execution of the decree "illegally" in the above noted case? OPA

¶5After the arguments on the said application, the same was dismissed by the ExecutingCourt vide order dated April 23, 2013. Hence the present petitionon the ground,mainly,challengingthejurisdictionof the Executing Court to fi-ame issues at such stage, and also to the issues framed as such.

¶6Duringthe courseof hearing,the learnedcounselappearingon behalf of the petitioner has not denied the factual position that the decree was passed in favour of the petitioneronly in respect of 7 ft. x 11 ft. land, however, the petitioner has taken possession of the built up property admeasuring28 ft. x 17 ft. i.e. the portionin respectof whichthe decreewas :M(M)No.721/2013 Page2of3 passed as well as other portion occupied by the objector who was dispossessed by execution of decree.

¶7Without observing and deciding anything on merits, I am of the view that the Executing Court in view of the facts and circumstances has framed the correct issues. Therefore, the prayer sought by the petitioner in the present case cannot be allowed.

¶8The petition is accordingly dismissed. Pending application also stands disposed of lOHAN SINGH) JUDGE JULY 30, 2013 CM(M)No.721/2013 Page3of3