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PETITIONER: SHRI MULK RAJ

       Vs.

RESPONDENT: SHRI SUNDER DAS & ORS.

DATE OF JUDGMENT:       11/01/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 SCC  (2)  84        JT 1996 (1)   360  1996 SCALE  (1)388

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      These appeals arise from the order of the High Court of Delhi dated  December 9,  1980 made  in Civil  Revision  No. 923/80. The  facts not in dispute are that the appellant was inducted into  possession of  the properties,  plots bearing Nos. 32, 33 & 35 admeasuring 384 sq. yards situated in Wazir Pur, Kotla Mubarakpur, New Delhi by Smt. Vimla Devi, the 3rd respondent. He had filed a civil suit for injunction against the respondent.  Ultimately, the  decree of  the trial court granting injunction  became final.  In  the  meanwhile,  the appellant as  well as  respondent  Nos.  1  &  2  each  have purchased 1/3rd  share of  the property.  Consequently, suit No. 27/73  was filed  for partition  and separate possession thereof. Preliminary  decree was  granted on  September  24, 1974 & final decree thereof was passed on May 22, 1980. Thus the rights  of the  parties  stood  worked  out  namely  the appellant &  respondent Nos.  1 and  2 are entitled to 1/3rd share each  in the total extent of the land as per the final decree granted by the civil court.      In view  of these  facts, it is stated by Shri Rajindra Sachher and  Shri G.L.  Sanghi, learned senior counsel, that the appeals have become infructuous.      It may  be mentioned  at this  stage that  this  appeal arises against  a proceeding  initiated under  Order 21 Rule 32(2) of  CPC for  enforcement of  the mandatory  injunction granted by  the civil  court in  execution. The  trial Court granted execution  to consign the respondents No. 1 and 2 to civil prison  and mandatory  injunction for  removal of  the respondents’ possession  of the  entire property with police assistance. The  appeal was  dismissed. While dismissing the revision  under   Section  115   CPC  as   being  barred  by limitation, the  High Court  suo motu  exercised  its  power under Article  227 of  the Constitution  and set  aside  the order of the execution court. Feeling aggrieved against that order, this appeal has been filed.

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    In view  of the fact that the parties have accepted the final decree  dividing the  properties into 1/3rd share each and allowing  that final decree to become final, the parties are bound  by the  decree and  the appellant  is entitled to 1/3rd share for possession. Any other proceedings in respect of lands covered by the final decree in suit No. 27/73 would stand closed  and all the parties are to enforce their right under the final decree only.      These appeals  are accordingly  disposed  of  with  the above directions.