A party who has obtained a lawful and enforceable decree or order should not be deprived of the fruits and benefits thereof by way of temporary injunction.

K. P. MOHAPATRA, J.

( 1 ) HOW at times justice eludes a party in the present justice system is best illustrated by this case in which, even though, the opposite parties obtained an order of restitution of property in Civil Revision No. 363 of 1981, decided on 24-8-1984 by this Court, have yet not been able to obtain redelivery of possession thereof.

( 2 ) A short account of facts will be useful to adjudicate upon the present controversy. Sobhan Khan was the owner of the schedule 'a' property of the plaint which consists of a house in Cuttack town. He left three sons - Kalu, Kurban and Aju. Kurban was issueless. Petitioner No. 1 is the wife of Yunus, son of Kalu and petitioners 2 to 6 are his sons. Opposite Parties 1 to 5 are the sons of Aju and opposite parties 6 to 8 are his daughters, Kurban and Aju sold their share in the suit house in favour of Kalu by a registered sale deed dated 29-5-1952 for consideration. On the same day, Kalu executed an agreement in favour of Aju permitting him to remain in occupation of a portion of the suit house during his lifetime. Kalu sold the suit house in favour of the petitioners by a registered sale deed on 10-7-1970. The petitioners instituted Title Suit No. 4 of 1971 in the Court of the Subordinate Judge. Cuttack for declaration of their title in respect of the suit house and recovery of possession thereof from Aju. The suit was decreed and the petitioners' title in respect of the suit house was declared, but their prayer for recovery of possession by eviction of Aju therefrom was rejected Aju preferred Title Appeal No. 140 of 1973 in the Court of the District Judge, Cuttack which was dismissed and the judgement and the decree passed by the trial Court were confirmed. Aju did not prefer a second appeal, whereas, the petitioners preferred Second Appeal No. 122 of 1975 in this Court. During the pendency thereof, Aju died and so, on a memo being filed by the petitioners' counsel for dismissal of the second appeal as not pressed, an order of dismissal thereof was passed. The petitioners filed Execution Case No. 176 of 1978 in the Court of the Subordinate Judge, Cuttack for execution of the decree in Title Suit No. 4 of 1971 and prayed for delivery of possession of the suit house. In execution of the decree, possession of the suit house was delivered in their favour on 18-2-1979. Thereafter, the opposite parties filed Misc. Case No. 76 of 1979 in the executing Court under Sections 144 and 151 read with O. 21, Rr. 99 and 106 of the Code of Civil Procedure ('code' for short ). The Misc. Case was allowed The petitioners

preferred Civil Revision No. 363 of 1981 in this Court which was dismissed with the following observation :-"from the aforesaid discussions conclusion is irresistible that the petitioners who were the decree-holders took delivery of possession through police help by evicting the judgement-debtors in excessive execution of a decree, which did not grant the relief of recovery of possession, by false assertion in the execution application there by abusing the process of the Court. Hence, the application for restoration of possession is to be treated as an application under S. 41 of the Civil Procedure Code and the order for delivery of possession is set aside. As a necessary incident thereof, the judgement-debtors are to be restored possession in exercise of the inherent powers of the Court though Selection 144, C. P. C. is not strictly applicable to the case. For these reasons, the order of the learned trial Court is affirmed"finding themselves in a peculiar humiliating position, culminating in parting with the suit house in favour of the opposite parties by order of this Court, the petitioners instituted Title Suit No. 327 of 1984 in the Court of the Subordinate Judge, Cuttack praying for recovery of possession of the suit house in case the they are dispossessed therefrom by the opposite parties. During the pendency of the suit, they filed a petition (registered as Misc. Case No.