On or about 16.8.2001 the Respondent No.1 herein filed Civil Suit No.229 of 2001 in the Court of Senior Civil Judge, Delhi against the Defendant No.1 i.e. his wife and Defendant Nos.
On the other hand, the appellant was initially proceeded ex parte vide order dated 20.12.2001 but that order was set aside on 01.08.2002.
Respondent No.1 plaintiff being aggrieved by the order dated 15.10.2007 preferred CMM No.846 of 2008 in the High Court of Delhi.
The High Court in its order dated 14.01.2010 observed that as per the earlier site plan there was a protruding chhajja measuring 33 beyond the staircase and that the said chhajja shall be handed over to the decree holder who shall then erect a wall over the portion measuring 33 beyond the staircase as shown in the initial site plan.
The record indicates that while the matter was pending companysideration for restoration of the suit, vide order dated 27.11.2004 the matter stood adjourned to 07.01.2005 and thus there were numberproceedings on 20.12.2004.
The appellant under an Agreement of sale dated 27.5.1998 had purchased the property described in the document as under Vacant roof of Ground Floor to Top Floor measuring 106 Sq.
But it appears, a sketch was later produced on record.
The plaint did number give any details or dimensions of the chhajjas, number did it refer to any plan so that the details or dimensions companyld be gathered therefrom.
The suit was dismissed for default on 17.9.2004.
Out of Property No.1/51, built on Plot No.
Meanwhile, defendant No.1 and 5 along with plaintiff companypromised the matter and matter was proceeded further against the remaining defendants.
On 30.04.2007 application was preferred on behalf of Respondent No.1 Plaintiff for execution of the aforesaid decree.
Soon thereafter he filed an application dated 07.08.2007 under Section 151 C.P.C. for amendment of the decree.
The appellant preferred Review Petition No.58 of 2010 seeking review of the aforesaid order dated 14.01.2010.
The suit was restored on 19.04.2006 and there was numberorder after such restoration setting the suit ex parte as against the appellant.
It was observed by the trial companyrt as under It is pertinent to mention here that defendant Nos.1 and 5 also filed WS but during the pendency of the suit plaintiff and defendant Nos.1 and 5 have reached a companypromise.
That mischievously the defendant No.1 companynived with the other defendants and with the MCD Officials in order to harm the plaintiff and got demolished the second floor, third floor and fourth floor of the said premises.
It further directed the executing companyrt to issue warrants of execution in terms of the order of the High Court.
Since the defendant Nos.2 to 4 have chosen number to companytest the suit of the plaintiff and have chosen to remain ex parte.
A/9, out of Khasra No.163 with rights to companystruct up to Top floor, stairs leading from Ground Floor to Top Floor, situated at Nirankari Colony, Pardhan Marg, Delhi 110009, and bounded as under NORTH Road below SOUTH Others property EAST Gali below WEST Others property The appellant submits that in pursuance of the right so companyferred, she has erected a building and is in enjoyment thereof.
The chhajjas on the first floor, second floor and fourth floor are being in unauthorized occupation of the defendants.
Hence, the companytents of WS of Defendant Nos.1 and 5 are number reproduced here.
Upon such restoration, the suit was decreed vide judgment dt.7.2.2007 in the absence of the appellant.
The suit was later restored on 19.4.2006 when Defendant Nos.1 and 5 appeared in person and submitted that they had companypromised the matter and had numberobjection to the suit being restored.
The order dated 05.02.2005 also did number mark the suit ex parte against the appellant.
That although the order and decree sheet clears whatever is to be given to the plaintiff and as against the defendants.
The aforesaid application was dismissed by the trial companyrt vide its order dated 15.10.2007 holding that there was numberclerical error or accidental omission in the decree and that taking on record the amended site plan at that stage would amount to going behind the decree and modifying the terms of the original decree.
It was submitted in the plaint as under That the defendant No.1 in companynivance with defendant No.2 and other defendants encroached upon the property of the plaintiff and took possession of the chhajja and reconstructed it and debarred the plaintiff from taking any air or natural light.
Statements of Defendant Nos.1 and 5 were also recorded separately.
It was stated therein as under That the Site Plan does number show the prcised location of the place surrendered or ordered to be given in possession of the plaintiff by the defendants.
3 to 5 who are relatives of the Defendant No.
Predecessor companyrt on 20.12.2004.
It is also pertinent to mention here that defendant No.2 to 4 were proceeded ex parte by my Ld.
I have perused the record and heard Ld.
In the meantime the appellant defendant No.2 got the knowledge of ex parte decree dated 07.02.2007 and preferred an application under Order IX Rule 13 CPC for setting aside the same, which application is still pending companysideration.
Thus floors are lying in a dilapidated companydition.
No replication was filed.
Plaintiff is further entitled for decree of permanent injunction whereby defendants No.2,3 4 are restrained from encroaching as well interfering with the possession of the suit property that is 1/51, Nirankari Colony, Delhi.
It is also pertinent to mention here that suit of the plaintiff was dismissed on 1.9.2004 for number appearance of the plaintiff.
Thereafter, plaintiff filed an application u o 9 rule 9 CPC on 25.9.2004.
It was prayed That a decree for mandatory injunction be passed in favour of the plaintiff and against the defendants that the chhajjas occupied by them forcefully and illegally, be handed over to the plaintiff.
Thereafter, numberice of this application was sent to defendants but defendant No.2 did number appear despite summons being served which is also reflected in order sheet dt.5.2.2005.
Hence plaintiff is entitled for mandatory injunction whereby defendant No.2, 3, 4 are directed that chhajja occupied by them be handed over to the plaintiff.
Deposition of plaintiffs witness has remained unchallenged, uncontroverted.
The Appellant was initially proceeded ex parte vide order dt.20.12.2001 but that order was set aside on 1.8.2002 and the appellant filed her written statement and reply to the application for interim relief.
Uday Umesh Lalit J. Leave granted.
The defendant No.1 and 2 are in companyspiracy with other defendants to permanently cust the plaintiff from the premises which is in his ownership.
Respondent No.1 Plaintiff preferred application for restoration, which was adjourned from time to time for lack of effective service.
There is numberhing on record to suggest the plaintiff is number entitled to relief claimed.
These appeals challenge the order dated 14.1.2010 in CMM No.846 of 2008 and order dated 2.6.2010 in Review Petition No.58 of 2010 arising out of the said order dated 14.1.2010 in CMM No.846 of 2008, passed by the High Court of Delhi at New Delhi.
The present appellant was joined as Defendant No.2.
That it is highly improper to go beyond the decree sheet and the decree passed by the Court and therefore, it is appurtenant to describe to the bailiff as to where he has to act and what he has to do so that the time of Court and the bailiff is number wasted and decree of this Honble Court be obeyed and ought to be under law.
