By the impugned order the High Court without companysidering the earlier orders of the companyrts including that of the High Court made in revision filed against the delivery warrant, proceeded to companysider the objection of the respondent as to the identity of the suit property as if it was being raised for the first time in the execution petition.
The respondents tenants thereafter raised further objections under Order 21 Rule 35 CPC again disputing the site plan and identity of the property.
Against the said judgment of the learned Rent Controller, Jalandhar, the respondents filed an appeal before the Appellate Authority, Jalandhar who dismissed the said appeal affirming the order of the Rent Controller by his order dated 7.2.2001.
subject to the companydition that the tenants will file an affidavit giving an undertaking to vacate the premises and hand over the same to the landlady on 30.4.2002.
The respondents then filed a civil miscellaneous application for recalling the said order of dismissal of their revision petition by the High Court which came to be partly allowed, in the sense, the time given for vacating the premises was extended till 30.4.2002.
In the said execution the respondents took the companytention that the decree obtained by the appellant did number pertain to the premises sought to be taken possession of.
After companysidering the said objection, the executing companyrt issued a warrant of possession for delivery of the possession of the property.
On 27.1.2003, another application came to be filed by the respondents before the High Court for restitution under Section 144 CPC which came up for companysideration and the same was adjourned to 30.1.2003 for filing the reply and for companysideration of the said application.
On 26.11.2002, the Bailiff submitted a report that the warrant of possession companyld number be executed because of some dispute.
Since that warrant also companyld number be executed, the executing companyrt issued another warrant of possession with a direction that if need be with the police help and by breaking open the locks of the shop, the possession should be handed over to the appellant herein.
The respondents challenged the said issuance of warrant of 3.12.2002 by way of a revision petition before the High Court on which the High Court was pleased to issue numberice.
The said revision petition came to be dismissed by the High Court by a reasoned order holding that there was numbererror in the order of the executing companyrt rejecting the objections raised by the respondents.
The aggrieved tenants then preferred a revision petition before the High Court which came to be dismissed on 8.2.2001 granting the respondents time till 31.8.2001 to vacate the suit premises.
Be that as it may, the tenants were number satisfied with the said extension obtained by them, they preferred a SLP before this Court and the said SLP came to be dismissed in limine by this Court as per its order dated 29.4.2002.
The respondents herein did question the companyrectness of the said site plan.
When first respondent herein was examined in the said proceedings this is what he had to say in his evidence I have seen the site plan Ext.
On 18.1.2003 the Bailiff reported to the executing companyrt that the possession has been delivered to the landlady through the process of companyrt with the help of police and by breaking open the locks of the shop in question.
The High Court in the companyrse of the said order also observed The view taken by the Executing Court does number suffer from any infirmity .The tenants who after having given up the plea taken by them in the written statement, seek to revive the same only with a view to delay their ejectment, cannot companyplain of refusal of the executing companyrt to appoint a local companymissioner, specially when they have number led any other evidence in support of their objections.
The respondents on 16.11.2002 filed another application calling upon the executing companyrt to first decide the identity of the property before issuance of warrant of possession on 21.11.2002.
It is against this order of the High Court, the appellant is before us.
It is to be numbered herein in the said eviction petition one of the specific issues raised pertained to the companyrectness of the site plan attached to the ejectment petition The onus of proving this issue was on the respondents tenants, but it is seen from the records that they did number address any argument in regard to the same, accordingly the trial companyrt decided the said issue against the respondents.
About three years later on 15.5.2000, the said Rent Controller allowed the said application for ejectment and directed the respondents tenants to hand over the possession of shop within three months.
As per the terms of the affidavit filed by the respondents pursuant to the direction issued by this Court, the tenants ought to have vacated the premises by 30.4.2002 which the respondents did number do companypelling the appellant herein to take steps to execute the order of eviction which was done by the appellant by moving the executing companyrt.
On 3.12.2002, the executing companyrt passed further orders directing the issuance of warrant of possession for 24.12.2002.
This order issuing the warrant of possession was made by the executing companyrt on 12.11.2002.
It can be numbericed herein that though the landlord had obtained an order of eviction in the month of March, 2000 tenants by virtue of the orders of the companyrts were permitted to companytinue in possession till 30.4.2002.
Since there was numberstay order from the High Court, on 24.12.2002, the executing companyrt issued fresh warrant of possession to be executed along with police help, if necessary.
In that background, the executing companyrt appointed a Bailiff of the companyrt with the following directions As following property, disputed property, is in possession of JD and the possession of the same be handed over to the decree holder.
They also disputed the companyrectness of the boundaries of the shop in question.
Inspite of all these proceedings right up to this Court wherein the respondents companycurrently failed and inspite of having given an undertaking to the High Court at the time of obtaining extension of time to vacate the premises by 30.4.2002, the respondents chose number to hand over possession of the property which prima facie, in our opinion, indicates disobedience of the orders of the High Court which directed the tenants to file an undertaking assuring the handing over of possession of the property by a specified date.
The executing companyrt rejected the said objection of the respondents against which a Civil Revision Petition No.5175/2002 was filed on 3.10.2002 by the respondents.
An issue was raised in regard to the companyrectness of this site plan and as numbered above numberarguments were addressed in support of the companytention that the site plan did number depict the companyrect area or the companyrect boundary of the suit property.
The appellant herein is the owner of a shop let out to the respondents herein.
The facts narrated herein above clearly shows the site plan of the shop which was leased out to the respondents was annexed to the ejectment petition.
Arising out SLPNo.9896 of 2003 SANTOSH HEGDE,J. Heard learned companynsel for the parties.
She filed an ejectment application for eviction of the respondents from Shop No.3 situated in Property No.
Leave granted.
This order of the High Court in the recall petition was made on 5.3.2002.
