Law: Civil Procedure Code (V of 1908)

Section: 12(2),35(2),99,100,101

Law: Specific Relief Act, 1877

Section: 42,12

(a) Civil Procedure Code (V of 1908)--- ----S.12(2) O.XXI, Rr.35(2), 99, 100 101---Specific Relief Act (I of 1877 ), Ss.42 12---Suit for declaration and possession---Fraud or misrepresentation of fact---Scope---Decree for possession from joint property, execution of ---Scope, who was not impleaded in the suit instituted by the respondent/plaintiff, filed application under S.12(2) of Civil Procedure Code, 1908, contending that under the garb of decree , her owned/possessed property was intended to be taken from her---Trial Court dismissed the application under S.12(2), C.P.C, without framing issues and adducing the evidence---Held, that property owned by the petitioner was not the subject matter of the suit filed by the respondent/plaintiff, thus there was no decree against the petitioners property---Record revealed that in the suit-in-question , no decree for partition was passed on the basis of which the specific portion of the property was to be handed over to the decree-holder ---Decree for declaration, in the present case, was to the extent of shares in the joint property and in terms of O.XXI R.35(2) of Civil Procedure Code, 1908, only symbolic possession would be handed over to the decree-holder--- Contention of the petitioner could not be treated as one under S.12(2), C.P.C, instead she had a remedy under the provisions of O.XXI, Rr.99, 100 101 Civil Procedure Code, 1908 under which she, being a bona fide claimant, could approach to the Executing Court by contending that no decree had been passed regarding her property---In case of possession from joint property, the mode of possession would be symbolic (by affixing a copy the warrant in some conspicuous place on the property etc.) under O.XXI, R.35(2), C.P.C---Property of the petitioner was not the subject matter in the suit-in-question, then there was no case of either fraud or misrepresentation of fact---No illegality or infirmity was found in the impugned s and orders passed by both the Courts below---Constitutional petition was dismissed in limine. (b) Civil Procedure Code (V of 1908)--- ----S.12(2)---Application under S.12(2) C.P.C---Framing of issues---Scope---Though application under S.12(2) of…

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