Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 2064 (RAJ)

Maina Devi(Smt. ) v. Smt. Ratni

2011-09-23

BELA M.TRIVEDI

body2011
JUDGMENT 1. - The present petition has been filed by the original objector in the execution proceedings and who is also the wife of respondent No.2, the original judgment debtor in the execution proceedings filed by the respondent No.1, the decree holder. The present petition has been filed challenging the order dated 3.8.2009 passed by the learned Addl. District Judge (Fast Track) No.4, Ajmer whereby application filed by the petitioner under Order 21, Rule 106 of Code of Civil Procedure for setting aside the order dated 13.10.2008 was rejected by the court. 2. The short facts giving rise to the present petition are that the present respondent No.1 had filed a suit against respondent No.2 seeking recovery of of Rs. 1,01,730/- before the trial court. The said suit was decreed by the trial court vide the judgment and decree dated 14.11.2006 directing respondent No. 2 to pay Rs. 88,000/- to the respondent No.1 with interest at the rate of 6% per annum on the decretal amount. It appears that said decree was not challenged by respondent No.2 and therefore the respondent No.1 filed the execution proceedings seeking execution of the said decree. In the said proceedings, a notice for auction of one shop situated in the land bearing Khasra No. 01 and Khasra No. 797/2 was issued on 26.7.2008. The present petitioner filed her objections before the executing court stating interalia that the said shop belonged to her and therefore the same could not be put to auction. The said objection application of the petitioner was registered as Objection No. 3/2007. The said objection application was resisted by respondent No. 1 by submitting reply on 6.9.2008. The executing court vide order dated 13.10.2008 rejected the said objection of the petitioner. The respondent No.1 thereafter filed an application for executing the warrant of recovery through special messenger which was allowed vide order dated 11.12.2008. The petitioner thereafter filed an application under Order 21, Rule 106 of CPC along with an application seeking condonation of delay under section 5 of the Limitation Act for setting aside the order dated 13.10.2008 and for restoration of the objection application on the file. The said application came to be rejected by the court vide impugned order dated 3.8.2009.Being aggrieved by the said order, the present petition has been preferred by the petitioner under Article 227 of the Constitution of India. 3. The said application came to be rejected by the court vide impugned order dated 3.8.2009.Being aggrieved by the said order, the present petition has been preferred by the petitioner under Article 227 of the Constitution of India. 3. It has been submitted by learned counsel for the petitioner that the petitioner was the owner of disputed shop situated in Khasra No.797/2. The said shop could not be put to action for realising the decretal amount in respect of the decree passed against her husband i.e respondent No.2. According to the learned counsel, the executing court had failed to appreciate the documents on record and dismissed the application for setting aside the ex parte order without considering the merits of the case. He also submitted that the order dated 13.10.2008 was passed without knowledge of the petitioner and the petitioner had submitted application under Order 21, Rule 106 within prescribed time limit after she came to know about the said order. According to the learned counsel for the petitioner, the executing court had committed an error in dismissing the said application of the petitioner. 4. Having regard to the submissions made by learned counsel for the petitioner and the impugned order passed by the executing court, it appears that the executing court had dismissed the application of the petitioner filed under Order 21, Rule 106 of CPC on the ground that the petitioner had not remained present at the time of hearing of her objection application, though sufficient opportunities were given to her. It has also been observed that the petitioner had failed to establish that she did not know about the order dated 13.10.2008 passed by the court rejecting her objection application. It is also found by the executing court that the petitioner had given the application one after the other only with a view to see that the decree holder did not get the fruits of the decree passed against her husband. 5. In view of the said findings of facts recorded by executing court, this court does not find any merit in the present petition. It is needless to say that the scope under Article 227 of the Constitution of India is very limited. It is pertinent to note that the impugned order was passed as back as on 3.8.2009 and the petitioner did not bother to proceed further with the present petition till this date. 6. It is needless to say that the scope under Article 227 of the Constitution of India is very limited. It is pertinent to note that the impugned order was passed as back as on 3.8.2009 and the petitioner did not bother to proceed further with the present petition till this date. 6. In that view of the matter, petition being devoid of merits is dismissed in limine.Petition dismissed. *******