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IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 31^st January, 2020

Date of decision: 19^th March, 2020

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CM(M) 1448/2019, CM APPLs. 43987/2019 & 43988/2019

DEV RAJ & ORS

..... Petitioners

Through:

Mr. B.B. Gupta, Senior Advocate with

Mr. Devesh Pratap Singh, Advocate.

(M:9999814755)

versus

SATPAL GULIA

..... Respondent

Through:

Mr. R.K. Saini, Ms. Bhavana Jain and

Ms.

Tavishi

Vats,

Advocates.

(M:8447641995)

CORAM:

JUSTICE PRATHIBA M. SINGH

JUDGMENT

Prathiba M. Singh, J.

1. The Petitioners - Shri Dev Raj, Shri Shiv Raj and Shri Hans Raj were the

Plaintiffs (hereinafter, “Plaintiff Nos. 1-3”) in a suit for permanent injunction

in respect of property bearing No. 223, Village Mangolpur Kalan, Delhi

(hereinafter, “suit property”). In the said suit, an interim order was passed in

the application under Order XXXIX Rules 1 and 2 CPC on 15^th February, 1994

to the following effect: -

2020:DHC:1766

2020:DHC:1766

P.F. R.C. etc. for 28.2.94.”

The Court, by way of an interim mandatory order, had thus directed removal of

the wall so as to provide access to the Plaintiffs on the basis that the Plaintiffs

were the owners of the property.

2. The said suit, however, came to be finally dismissed by the ld. Trial

Court vide judgment/decree dated 24^th December, 1999, which reads as under: -

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R/R.”

At the final stage, the trial court came to the conclusion that the Plaintiffs had

failed to establish ownership and thus, while dismissing the suit, directed the re-

construction of the wall which was demolished and restoration of the same to

its original condition.

3. The said judgment/decree was challenged by Plaintiff Nos. 1-3. The first

appeal was dismissed on 16^th May, 2018 and the second appeal was dismissed

on 14^th September, 2018. In effect, the original judgment/decree was

maintained by both the Appellate Courts.

4. Considering the nature of the judgment/decree which was passed by the

Trial Court, the Respondent/Defendant (hereinafter, “Defendant”) in whose

favour a final order of restoration was passed by the Trial Court, sought

execution of the judgment/decree. The Executing Court considered the

judgment/decree and on 26^th April, 2019, dismissed the objections filed by

Plaintiff Nos. 1-3 and directed as under:

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Application disposed of accordingly.”

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Thus, the executing court came to the conclusion that on the basis of the initial

interim injunction which was granted in favour of the Plaintiffs, they continued

to enjoy benefit of the order and possession of the property since 1994, while

the Defendant was deprived of the enjoyment of the property, though finally the

suit was dismissed. Thus, the court observed that the Defendant ought to be

compensated for enjoying the property during the said period and directed the

payment of damages/mesne profits of Rs. 25 lakhs. In order to implement its

order, the Executing Court appointed a bailiff vide a separate order of the same

date i.e., 26^th April 2019, in the following terms:

“Vide separate order passed today, the objections filed

Bailiff of this court is directed to restore the original

position of the suit property i.e. erecting a wall in front

Issue warrants of possession against the JD qua

the suit property i.e. House No. 176 having area of

2020:DHC:1766

…………….

granted if it is required to execute the warrant.”

5. Plaintiff Nos. 1-3 thereafter preferred an appeal which has been

dismissed vide the impugned order dated 16^th September, 2019 on the ground

that the same is not maintainable.

6. Mr. B.B Gupta, ld. Sr. Counsel appearing for Plaintiff Nos. 1-3 submits

that on the issue of maintainability of the appeal, the Appellate Court was

completely wrong in law. He submits that even objections under Section 47

CPC have to be treated as those filed under Order XXI Rule 97 CPC as the