It appears that the said application remained lingering on the file of Executing Court for number of years and ultimately the Executing Court directed execution of the warrant for possession by affording help of police force to the decree holder.
For resoling the aforesaid companytroversy between the appellant on the one hand and respondent number1 decree holder on the other a few introductory facts deserve to be numbered at the outset.
25 of 1990.
The Executing Court without adjucating upon the objections of the appellant on merits and without deciding whether the obstruction or resistance offered by him was legally justified or number dismissed the appellants application dated 22nd January 1996 by order dated 15th February 1996.
These proceedings were registered as Execution Case No.
As respondent number1 decree holder seeks to execute his decree for possession of immovable property against judgment debtor respondent number2 he has rightly invoked provisions of Order XXI, CPC by putting the decree for possession of immovable property into execution.
It was at that stage that the present appellant filed a written application on 22nd January 1996 before the Executing Court to stay operation of the said warrant and to decide his objections.
In the background of the aforesaid factual matrix it is necessary to have a look at the relevant statutory provisions governing the companytroversy between the parties.
Under these circumstances the decree holder by his application dated 6th May 1991 requested that help of magistrate and armed force be made available at his companyt for execution of the decree.
By a rejoinder dated 1st February 1996 respondent number1 decree holder raised the question of maintainability of such an application before handing over actual possession to the decree holder.
His application for issuance of a fresh warrant for possession with the police aid as moved by him on 6th May 1991 purports to invoke the provision of Order XXI Rule 35, CPC which reads as under Decree for immovable property.
A decree was passed in favour of respondent number1 against the judgment debtor respondent number2 in 1988 by the Court of Munsif II, Munger, Respondent number1 filed execution proceedings in 1990 against respondent number2 judgment debtor.
When the bailiff went on spot to execute the warrant on 28th April 1991 he was resisted by the present appellant as well as his brothers Sitaram Choudhary and Jago Choudhary along with 20 25 persons and because of the resistance offered by them and on account of abuses ad throwing of bricks and stones indulged into by them it was impossible to execute the warrant for possession.
Respondent number1 filed an Eviction Suit No.
On 25th April 1991 respondent number1 decree holder obtained warrant for delivery of possession from the Executing Court against respondent number2.
54 of 1988 in relation to six and a half dhurs of the suit land against respondent number2 and his mother Bachani Devi.
B. Majmudar, J. In this appeal by special leave the appellant has posed a short question or our companysideration.
Shri Sanyal, learned senior companynsel for the appellant has raised a serious grievance against the aforesaid view of the High Court.
This Court granted special leave to appeal to the appellant under Article 136 of the Constitution of India and granted stay of dispossession by its order dated 17th September 1996.
