JUDGMENT T.P.S. Mann. J.:- The petitioner has filed the present revision under Article 227 of the Constitution of India, wherein he has prayed for setting ,aside the order dated 15.3.2004 passed by Civil Judge (Junior Division), Hisar and also the order dated 16.10.2006 passed by Additional District Judge, Hisar. 2. As is apparent from the petition and the impugned orders, respondent No.1 had filed suit for possession by way of specific performance of agreement to sell dated 8.5.1990. This suit was decreed by learned Additional Civil Judge (Senior Division), Hisar on 22.3.1997. The said judgment and decree was upheld in appeal. The decree-holder then filed an application in the Court of first instance praying therein that the judgmentdebtors had not obeyed the decree and they be directed to perform their part by executing the sale-deed in his favour and deliver the possession of the suit land. The said execution application was opposed by the present petitioner by filing his objections on 10.3.2003, but the same were rejected, being not sustainable, by learned Civil Judge (Junior Division), Hisar on 15.3.2004. This order was challenged in appeal by the petitioner. Along with the appeal, an application was also filed for condonation of delay of 119 days in its filing learned Additional District Judge, Hisar vide order 16.10.2006 dismissed the application for condonation of delay in the filing of the appeal and consequently, the appeal was also dismissed. Hence, the present revision. 3. Learned counsel for the petitioner submitted that the order passed by learned Civil Judge (Junior Division), Hisar while rejecting the objections as unsustainable was a revisable order and the petitioner had been ill-advised to challenge the same by filing the appeal. Therefore, the present revision be considered and decided by this Court on merits without adverting to the order passed by learned Additional District Judge. 4. On the other hand, it was argued by learned counsel for respondent No.1 that the order passed by the executing Court was apparently one passed under Order XXI Rule 97 CPC. And therefore, the same could be challenged only by filing an appeal as provided under Order XXI Rule 103 C.P.C. instead of filing a revision petition. 5. The law has been well settled that an order passed under cannot be challenged by filing a revision petition, as the same is not maintainable.
And therefore, the same could be challenged only by filing an appeal as provided under Order XXI Rule 103 C.P.C. instead of filing a revision petition. 5. The law has been well settled that an order passed under cannot be challenged by filing a revision petition, as the same is not maintainable. There is specific remedy of appeal provided against the said order in view of the provisions contained in Order XXI Rule 103 C.P.C. It was held by Hon’ble Supreme Court in S. Rajeswari Vs. S.N. Kulasekaran and others, 2007 (1) Recent Civil Judgments 180, as under : “Learned senior counsel for the appellant-obstructor submitted before us that the application filed under Section 151 C.P.C. being not maintainable nothing survived for further consideration. Having regard to the fact that the executing Court substantially followed the procedure laid down by Rules 98 to 100 and thereafter passed an adjudicatory order, we may hold in favour of the respondent No.1 to the extent that the application though filed with the label of Section 151 C.P.C. was in fact treated as one under Order XXI, Rule 97. This, however, does not resolve the controversy before us because even if we treat the said application under Section 151 C.P.C. as one under Order XXI, Rule 97 C.P.C., the order passed in that proceeding must be treated as a decree against which only an appeal lay to the appellate court. The respondent No.1 did not appeal to the High Court and instead preferred a revision petition under Section 115 C.P.C. We have no doubt that in view of the provisions of Order XXI, Rule 103, C.P.C., which provide for appeal against the order passed by the executing court in such matters, no revision could be entertained by the High Court against that order in view of the clear prohibition contained in Section 115(2) of the C.P.C. which in clear terms provides that the High Court shall not under Section 115 vary or reverse any decree or order against which an appeal lay either to the High Court or to any other Court subordinate thereto.
The High Court appears to have interfered with the order of the executing court because it was under the impression that a long drawn litigation, perhaps engineered by the judgment debtor, would result in great injustice, and, therefore, if some relief could be granted by cutting short the procedure of appeal, etc., the power under Section 115 could be exercised to do justice between the parties. In our view, the High Court could not have acted in a matter contrary to the express provision of Section 115(2) of the Code of Civil Procedure. Since an appeal was provided under Order XXI, Rule 103 of the Code of Civil Procedure which treated the order passed by the executing Court as a decree subject to the same conditions as to appeal against such decree, a revision petition under Section 115 C.P.C. against such an order is not maintainable. We must therefore, hold that the High Court exceeded its jurisdiction in entertaining a revision petition under Section 115 C.P.C. against an order passed in proceeding under Order XXI, Rule 97 C.P.C. even if we treat that the application filed under Section 151 C.P.C. to be an application under Order XXI, Rule 97 C.P.C.” In view of the above, there is no force in the contention made on behalf of the petitioner that he had been ill-advised to challenge the order of the executing Court by filing an appeal. The petitioner had rightly filed an appeal but while doing so, he delayed it by 119 days’ beyond the period of limitation prescribed for filing such an appeal. Though, the petitioner had filed an application under Section 5 of the Limitation Act for the condonation of the said delay in filing the appeal, but he failed to show any sufficient cause for condoning the said delay. His plea, that he had not given his address to his counsel and therefore, his counsel could not contact him for taking up further proceedings against the order rejecting his objections, is neither here nor there. The objections filed by the petitioner were dismissed on 15.3.2004.
His plea, that he had not given his address to his counsel and therefore, his counsel could not contact him for taking up further proceedings against the order rejecting his objections, is neither here nor there. The objections filed by the petitioner were dismissed on 15.3.2004. Even if his counsel had not informed him, may be for lack of contact address, still the petitioner, as a prudent man, was expected to keep in touch with his counsel to know the outcome of his objection petition and also to find out availability of any remedy of appeal or revision against the same. It is apparent that the excuse given by the petitioner for seeking the condonation of delay was only made up one and not genuine. Under these circumstances, leaned Additional District Judge, Hisar vide impugned order dated 16.10.2006 was justified in dismissing the application for condonation of delay, besides the appeal itself. 6. Even otherwise, it is clear from the perusal of judgment and decree dated 22.3.1997 passed by Additional Civil Judge (Senior Division), Hisar that in the suit filed by present respondent No.1, there were only two defendants, namely, Girdhari and Surja. Out of the two defendants, Girdhari died and he is being represented by his legal representatives, who are respondents No.2 to 11 in the present revision. Neither the said legal representatives of Girdhari nor Surja-defendant (now respondent No. 12) raised any objection to the execution of the decree for possession by way of specific performance of the agreement to sell. It is Raju-petitioner, who was neither a party to the agreement to sell nor one of the defendants in the aforementioned suit, who has come up for objecting to the execution of the decree. Though, Raju-petitioner would step into the shoes of his mother Smt. Phulli (Smt. Phulli is sister of Surja and niece of Girdhari afore mentioned) yet, Smt. Phulli had no share or interest in the land in dispute. The revenue entries in respect of the land in question do not reflect the ownership of Smt. Phulli along with Girdhari and Surja. Smt. Phulli, during her life time never challenged the mutation entries in respect of the land in question which stood in the name of Girdhari and Surja.
The revenue entries in respect of the land in question do not reflect the ownership of Smt. Phulli along with Girdhari and Surja. Smt. Phulli, during her life time never challenged the mutation entries in respect of the land in question which stood in the name of Girdhari and Surja. If she allowed the said entries to stay her son, the present petitioner, will not be permitted to raise any objection to the execution of the present decree. Therefore, it is clearly established that the petitioner had no right in the land in question and as such not justified in raising objections during the execution proceedings. In view of the above, there is no merit in the revision, which is, accordingly, dismissed. —————————