IMPORTANT POINT
The execution of a decree must follow due process, including notice to the parties involved, but compliance with prior agreements is essential for lawful execution.

ORDER :

1. The instant writ petition has been filed by the petitioner challenging the order dated 08.10.2024 (hereinafter as ‘the impugned order’) passed by Learned Civil Judge, Sr. Division, Aburoad (hereinafter as ‘learned Civil Judge’) whereby the learned Civil Judge has dismissed the application filed by the petitioner herein in Civil Execution Case no. 05/2024 under Section 151, Code of Civil Procedure, 1908 (hereinafter as ‘CPC’). The instant writ petition has been filed by the petitioner for quashing and setting aside of the impugned order with the following prayer:

“It is therefore, most humbly prayed that this writ petition may kindly be allowed with cost and by an appropriate writ, order or direction:

(A) The order dated 08.10.2024 passed by learned Civil Judge, Sr. Division, Aburoad may kindly be quashed and set aside.

(B) The possession of the shop/premises in question from the petitioner with forcefully with the help of police and without adopting due process of law and giving opportunity of hearing, may kindly be restored.

(C) The learned Civil Judge, Sr. Division, Aburoad may kindly be directed to decide the objection filed under Section 144 read with 0.21 R.99 and 101 CPC before closing the execution proceedings on the application filed by the respondent-judgment-debtor.

(D) Any other appropriate relief which deemed fit in the facts and circumstances of the case may kindly be passed in favor of the petitioner.”

2. Briefly stated the facts of the case are that the petitioner herein was in possession of the premises in question being a tenant. However, vide judgment and decree dated 10.05.2012 (Annex.1) passed by the Civil Judge (Sr. Division), Abu Parvat in Civil Suit No. 71/2010 a decree was passed in favour of the respondent no. 1 herein (Plaintiff in the said suit) and respondent no. 2 to 4 were directed to hand over the possession of the suit premises to the respondent no. 1 herein in terms of the decree. Subsequently, Civil Execution case no. 3/2013 was filed by the respondent no. 1 herein and the said execution was decided by a compromise between the petitioner herein and the other party on 17.08.2022, wherein the petitioner was directed to vacate the suit premises by 16.08.2024 with condition that in case the premises are not vacated by the petitioner herein, the respondent no. 1 would be at liberty to initiate appropriate proceedings before the court in accordance with law. As the said premises were not vacated by the petitioner herein, the respondent no. 1, in accordance with the compromise dated 17.08.2022, filed Civil Execution Case No. 5/2024 before the learned Civil Judge whereby the learned Civil Judge issued possession warrant and in compliance of the same on 12.09.2024, the physical possession of the premises was handed over to the respondent no. 1 and also a list of the goods kept in the said premises was prepared. Aggrieved by the same the petitioner herein preferred an application under Section 151, CPC for handing over the possession of the premises and the things kept there, which has been taken away from the petitioner. However, the learned Civil Judge dismissed the said application vide the impugned order (Annex.14). Aggrieved by the impugned order, the petitioner has filed the instant writ petition.

3. Learned counsel for the petitioner submits that the learned Civil Judge has erred in dismissing the application of the petitioner. He further submits that the proceedings adopted by the executing Court after lapse of 12 years from passing the judgment and decree is illegal and against the provisions of law, because the execution application has been filed on 27.08.2024 which is barred by law of limitation and the learned executing Court has not considered this aspect while issuing the possession warrant.

4. Learned Counsel for the petitioner further submits that while passing the impugned order learned executing Court has wrongly issued the possession warrant without issuing notice to the petitioner