Case Note & Summary
The case involves a civil revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (CPC) by the petitioners, who are the 3rd and 4th judgment debtors in Execution Case No. 10/2008 pending before the Additional Civil Judge (Jr.Dvn.), Chikmagalur. The petitioners challenged the order dated 19.04.2014 passed on IA 10 in the execution case. The respondents are the decree holders, with the 1st respondent appearing in person. The dispute pertains to the execution of a decree for delivery of possession of property. The petitioners contended that delivery of possession had already been effected and accepted by the decree holder, and thus the decree stood satisfied, relying on the Supreme Court judgment in Shew Bux Mohata & Anr v. Bengal Breweries Ltd & Ors (AIR 1961 SC 137) and the Karnataka High Court decision in Mrs. Rosane Jerome D'Souza v. Bhagvandas Gangaram Kamble (dead) by LRs (2005(1) KCCR 292). The respondent argued that actual possession of the property after demolishing the structure had not been obtained, and relied on Rajendra Singh & Anr v. Sathyavathi (2013 STPL (Web) 439 SC) to assert that the fruits of the decree should reach the party. The High Court, after hearing both sides, held that a second application for delivery of possession would arise only if there was no legal, complete and effectual delivery of possession earlier. The court found that the executing court's order was proper and dismissed the revision petition. However, the court clarified that the respondent could file an application for delivery of possession, and the executing court should issue a delivery warrant through court process to hand over actual possession of the structure.
Headnote
A) Civil Procedure Code - Execution of Decree - Delivery of Possession - Second Application - The court considered whether a second application for delivery of possession is maintainable when the decree holder had not obtained actual possession after demolishing the structure. Held that a second application for delivery of possession would lie only if there was no legal, complete and effectual delivery of possession earlier. The executing court's order was upheld, and the revision petition was dismissed. (Paras 1-4) B) Civil Procedure Code - Section 115 - Revision - Scope - The revisional court examined the order passed on IA 10 in Ex.Case 10/2008. The court found no scope for reviewing the execution order and dismissed the petition filed by the judgment debtors. (Paras 1-4)
Issue of Consideration
Whether a second application for delivery of possession lies when the decree holder has not obtained actual possession of the property after demolishing the structure, and whether the execution court's order allowing such application is sustainable.
Final Decision
The High Court dismissed the revision petition, upholding the order of the executing court. It held that there is no scope for reviewing the execution order. However, the court clarified that the respondent can file an application for delivery of possession, and the executing court should issue a delivery warrant through court process to the judgment debtors to hand over actual delivery of possession of the structure.
Law Points
- Execution of decree
- delivery of possession
- second application for delivery
- satisfaction of decree
- Section 115 CPC
