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1979 DIGILAW 38 (MP)

Ramchandra v. Mira

1979-01-22

S.R.VYAS

body1979
Short Note : 1. This order will also govern the disposal of Civil Revision No. 594 of 1978, Ramchandra and others v. Hira. S/o Kaluji, which is also between the same parties. 2. In Civil revision No. 416 of 1978 the main grievance put forward by the learned counsel is that instead of disposing of the objections raised by the legal representatives of Bhera on their own merits, the execution Court has summarily rejected all the objections on the only ground that these objections were raised only to delay the execution of the case and were not based on any genuine ground. The learned counsel for the non-applicant, however supported this view as fully justified. I have gone through the impugned order dated 11-5-78 and am of opinion that the contention of the learned counsel for the applicants is well founded. Held: It is evident from the impugned order that the decree-holder has raised a number of questions and has put them in writing also before the learned executing Court. But the learned executing Court has not decided these questions on merits and has answered them against the applicants on the only ground that they appear to have been raised only to delay the disposal of the execution case. It may. be that in the opinion of the learned executing Court the objections were only to prolong the execution proceedings but it should not have been difficult for the executing Court to decide these objections on their own merits. It was not proper to answer all these questions and/or objection on the only ground that they were made either after considerable delay or were made with a view to delay the disposal of the execution case. If any objection was barred by time according to law, then a finding to that effect should have given. In any-event it was not proper to dispose of these objections in the manner they were disposed of by the order dated 11-5-78. The executing Court must consider all questions and/or objections raised by the applicants on their own merits and decide them according to law. 3. So far as the impugned order dated 29-7-78, which is the subject of Civil Revision No. 594 of 1978 is concerned, it is liable to be set aside on a preliminary ground only. The executing Court must consider all questions and/or objections raised by the applicants on their own merits and decide them according to law. 3. So far as the impugned order dated 29-7-78, which is the subject of Civil Revision No. 594 of 1978 is concerned, it is liable to be set aside on a preliminary ground only. Civil Revision No. 416 of 1978 was filed in this Court on 26-6-78 and 10-7-78, further proceedings in the executing Court were stayed until further orders. From the record of this it appears that a copy of this stay order was despatched to the executing Court under endorsement No. 10709 dated 10-7-78. There is no note on this copy as to when the same was received by the executing Court. The record of the execution case also does not show that the presiding officer of the Court took any note of the receipt of this stay order from this Court. The executing Court is situated at Bagli in the district of Dewas and ordinarily copy of this order must have been receive d by that Court within a couple of day's time. While the matter was still pending in the executing Court, the impugned order was passed on 29-7-78. On that date an application was made by the applicant's counsel that further proceedings in this executing Court have been stayed because of the order passed by this Court. Inspite of this application, the learned executing Court proceeded to pass the impugned order on 29-7-78. It appears and more or less it is evident from the record of the lower Court that the impugned dated 29-7-78 was passed in total disregard of the stay order passed by this Court. On 10-7-78 such an order has to be treated as having been passed without jurisdiction. When proceedings were stayed by this Court and the order staying the proceedings was despatched immediately it is presumed that it must have reached the lower Court before the impugned order dated 29-7-78 was passed. in these circumstances the said order must be set aside as having been passed without Jurisdiction. Revisions allowed, cases remanded.