- (1.)Heard both sides. Special leave granted.
(2.)The appellant is the assignee decree-holder in O. S. No. 293 of 1974 on the file of Munsif's court. Respondent 2 is the decree-holder and respondent 1 is the judgment-debtor. Respondent 2 filed the original suit for recovery of the shop rooms with arrears of rent and the same was decreed and he applied for execution. Meanwhile respondent 1 filed an appeal against the decree and obtained stay. The appeal was dismissed giving two months' time to surrender the shop. The decree however became final and the pending execution petition was posted for September4, 1976 on which date respondent 2 also produced a copy of the appellate court decree dismissing the appeal. Thereafter the execution petition was adjourned to 4/11/1976. On 6/10/1976 respondent 2, however, filed a petition for advancing the posting of the execution petition and the same was advanced to 18/10/1976 for objections and for delivery. Respondent 1 the judgment-debtor who had the notice of the date of posting did not appear on 18/10/1976 and the executing court ordered delivery on 19/10/1976 and the delivery was effected on the same day. Respondent 1 however filed execution application for redelivery on the ground that he had no notice of the advanced posting of the execution petition and the delivery was ordered and effected without notice to him behind his back and that there was violation of principles of natural justice. The trial court dismissed the said petition holding that there was a valid and final decree for recovery of possession in favour of the plaintiff namely respondent (sic 2 and that advancing the date of hearing of the execution petition without giving notice to him was only at the most an irregularity which did not vitiate the entire execution proceedings. Respondent 1, however, filed a civil revision petition in the High court which by its order dated 3/08/1988 allowed the same on the ground that the order of delivery was passed without notice to the judgment-debtor and it resulted in violation of principles of natural justice and it accordingly set aside the order of delivery and remanded the case to the executing court for de novo consideration. After the said remand the trial court allowed the petition filed by respondent 1 and directed the redelivery of the decree schedule shop. Hence the present appeal.
(3.)Learned counsel for the appellant submitted that the decree has neither been varied nor reversed and that the same has become final and therefore respondent 1 is not entitled to restitution and that this is a case where the High court should not have interfered invoking its inherent jurisdiction under Section 115 Civil Procedure Code. Learned counsel further contended that the delivery of possession was ordered pursuant to the valid and final decree and that the judgment-debtor was also fully aware that eviction proceedings will be taken against him by the decree-holder and that mere advancement of the hearing of the execution petition without giving notice to him, is only an irregularity which does not vitiate the entire execution proceedings. Learned counsel for respondent 1, the judgment-debtor, however submitted that in law the delivery without notice to him is not a mere irregularity but it is an illegality and the appellant can take delivery of the possession of the properties only after disposal of the execution petition in accordance with law namely after giving due notice to the judgment-debtor.