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Ashok K Gupta (Assistant Registrar)     17 October 2016

Possession of land after decision, decree by court

Dear Learned Advocate

There might have been several threads raising this issue on earlier occasions. But in want of suitable technical legal words, I am not in position to locate.

I am not very much familiar with the legal provisions and have never understood the land in dispute on earlier occasions, as our father was dealing with the case with the help of his counsellor.

And now unfortunately I have lost my father recently. I have started pursuing the case. With my little understanding in the case, I could summarize the case as under:

We have a land of around 15000 sqm in a town of UP. The land was acquired by our father in the year 1988. But the neighbouring locales raised dispute on the referred land. They positioned themselves the owner of land in dispute and surrounded the same with temporary arrangements. Every now and then they did not let us take possession of the land. They challenged the same in Civil Court. Civil Court after a very long hearing of about 12 years passed the order/ decision in our favour. Accordingly, the court also issued Decree Order in the case in our favour. The opposition having received this verdict, again challenged in the District Court for Stay Order. District Court after a long hearing recently dismissed the appeal for stay. Summary of the latest hearing/ argument is available on the e-court website.

Case Details at District and Session Judge

Case Type: Civil Appeal
Filing Number: 200127/2008Filing Date: 20-09-2008
Case Code: 201802001272008

Case Status

First Hearing Date: 17th February 2012
Decision Date: 21st September 2016
Case Status: CASE DISPOSED
Nature of Disposal: Contested--DISMISSED
Court Number and Judge: 1-District & Session Judge

Petitioner and Advocate: 1) SatyaNarayan & Others, Address - Hari Gaon SRN
Vs

Respondent and Advocate: 1) Prem, Address - Hari Gaon SRN

Now after getting the dismissal of appeal seeking stay by the opponents, we on the advice of our consel submitted a caveat in the High Court of Allahabad.

However, we are still finding ourselves in difficulty to take possession of the land in dispute. We are yet not sure how to get the possession on the land and what are the further course of actions we should take in the matter.

Suggestions from any of your learned advocates would be of immense help to us.

Anticipating your kind attention and valued response/ suggestion

Thanks in advance for your lookup.

Ashok K Gupta

09471191644



Learning

 9 Replies

Srinivas (Director)     20 October 2016

Hi Ashok, I am no expert but once you have a Decree in your favor for recovery of possession, you should file an Execution Petition in the same court you obtained a decree. The lower court is your execution court even though the appeal is filed in a higher court. 

You could have filed the Execution petition after getting the first Decree. Filing of an appeal does not automatically stay the Execution proceedings. It will take 1~2 years to hear the execution petition and order recovery. When making a prayer, state that defendants have not complied in court orders and are in contempt of court. Pray for attachment of Judgment Debtors (Defendants) properties until orders are complied with. If Judgment Debtors don't have other properties ask for the arrest of Judgment Debtor until the property has been recovered. Hope this helps. Hopefully, other experts will correct any mistakes in my novice advice and add light on how to proceed. Good Luck.

1 Like

Srinivas (Director)     20 October 2016

Hi Ashok, I am no expert but once you have a Decree in your favor for recovery of possession, you should file an Execution Petition in the same court you obtained a decree. The lower court is your execution court even though the appeal is filed in a higher court. 

You could have filed the Execution petition after getting the first Decree. Filing of an appeal does not automatically stay the Execution proceedings. It will take 1~2 years to hear the execution petition and order recovery. When making a prayer, state that defendants have not complied in court orders and are in contempt of court. Pray for attachment of Judgment Debtors (Defendants) properties until orders are complied with. If Judgment Debtors don't have other properties ask for the arrest of Judgment Debtor until the property has been recovered. Hope this helps. Hopefully, other experts will correct any mistakes in my novice advice and add light on how to proceed. Good Luck.

Ashok K Gupta (Assistant Registrar)     20 October 2016

Dear Sir,

Thank you very much for your immense valuable guidance.

I would like to mention that earlier the case was dealt in by my late father. And he with his counsel did his maximum. Getting the first decision in his favor and then receiving the Decree Order. However, the opponents challenged the Decision and Decree, and sought for the Stay (to my understanding because of the slow-pace judiciary), this was lingered for a period of more than 5-6 years. 

However, recently when the Stay request of the opponent was dismissed, we are now submitting the EP in the lower court as advised. I feel this requires a rigorous pursuance with the Judiciary to expedite the case and get us the possession on the land.

Anyways, thanks for your kind attention and valuable advice.

Hope to have some soones favor from the court/ administration.

Best regards

Srinivas (Director)     21 October 2016

Ashok,

You have already waited a long time (12 years is a torture). Work with an advocate who will submit a well draft execution petition and attend hearing regularly. If you stay on top of your application, you can get a fast relief. Normally the other side will raise objections and if denied file an appeal. Just make sure any appeals arising from execution petition does not result in stay of execution proceedings. 

Good Luck,

Srinivas

balas (Chartered)     02 November 2016

Hi Ashok,

I have not much to add apart from Mr. Srinivas contribution.

Yes you need to file EP to get physical possession which itself is a tedious process although in theory it is part of tne ends of justice system and should be quick and fast. Unfortunately, the judiciary is inefficient in its functioning plus the legal smartness of the lawyers to ensure the process does not end quickly.

You need to ensure your counsel goes to EP court on the called dates regularly (for 'n' years) else it has chance for dismissal, although by law EP cannot be dismissed easily.

Please read Order XXI, rule 26 to 29, link https://www.nls.ac.in/lib/bareacts/civil/cpc/cpco21.html.

As cited by you, the appeal is dismissed which goes in your favour. You can cite the same in your EP and state ends  of justice is not met for more than 17/18 years and request speedy EP.  As  a party, you can be present physically on those called for dates to ensure that case proceeds, else it is as good as another run of trial case.

I believe eventually it goes through from court to collector's office for completion of execution process  (incase of agricultural lands) which takes considerable time element.

HOpe this helps.

Rgds

Balaji Srini FCA., LL.B.

 

1 Like

Ashok K Gupta (Assistant Registrar)     03 November 2016

Dear Balaji Sir,

Thank you very much for your valuable advice.

As advised, apart from submitting the Caveat in High Court, in light of the order of the Civil Judge (Jr Division) and order of District Court, I have submitted an EP through my advocate in the SDM Court for eviction of the opposite party.

As rightly explained, SDM court has referred the case to SHO/ Chowki In-charge with the instruction to comply the order of court and submit the report on development.

Every now and then the Chowki in-Charge is calling us apart from the opposite party, and today it granted some 24hours time to the opposite party for submission of documents. Opponents informed the Chowki Incharge that they have submitted the appeal for Stay in the High Court. Don’t know the ground on which this extension is granted.

Now I am unsure how long it is going to take further. 

Any further advice will be highly helpful.

Best regards

balas (Chartered)     04 November 2016

Hi Mr. Ashok,

Further to your above inputs, I believe persistence and patience pays. In your case, EP execution process is underway so keep coordinating with the authorities and push to the limits.
On the process of execution, chowki, VAO / Land records officer(incase of agricultural lands) do not need to report back time bound and report on progress of execution to court. So  can't deiay too long as well, so remain with hope.

As you have cited, the opposite party has gone for an appeal for stay. This does not entitle automatic grant of stay and in addition you have caveat filed which means without you being heard case cannot be heard ex-parte (offcourse unless you absent which is unlikely). I wonder on your last line that '...exten.. is granted'. I guess you have presumed that stay has been granted. Pls. do check out yourself if stay has been granted, very unlikely. You can check status of court cases as they are now online.


In addition, high court does not entertain friviolous appeal not carrying material strength. HIgh court normally disposes of cases quickly unlike trial courts. 

Hope this helps.

Rgds
Balaji Srini FCA., LL.B.

Ashok K Gupta (Assistant Registrar)     04 November 2016

Sir

Thanks for your attention and valuable advice on the issue.

I believe persistence pays, but we have not only waited for several years to get the judgement/ order, but also lost our father. You may appreciate that we are putting in our efforts only as a tribute to our father.

Anyways, as per your suggestion, we are regularly following up with the Authorities (SHO/ Chowki Incharge) and hoping to have favour in due course of time. As far as I could gather the information the opposition has yet not been able to submit their appeal in the High Court. I am really unaware of the time-limits for submission of such appeal after passing of the judgment. Hope you could give me further idea.

With my last line regarding granting of extension, I just meant that the Chowki Incharge has given some time to the opposite parties for producing any evidence indicating admission of stay appeal, review or any such thing by the High Court.

Hope I have been able to give a clear picture on the issue.

Warm regards 

Ashok K Gupta

Ashok K Gupta (Assistant Registrar)     07 November 2016

Dear Learned Members

Could you please tell me what is IJRA.

My advocate has suggested me to submit an Ijra.

Regards

Ashok K Gupta


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