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2014 DIGILAW 240 (RAJ)

Ram Ratan v. Kesari Lal

2014-01-21

BELA M.TRIVEDI

body2014
JUDGMENT 1. - The present revision petition filed under Section 115 of CPC is directed against the orders dated 24/01/2003 and 21.11.2002 passed by the Additional District Judge no.1, Bundi (hereinafter referred to as 'the Executing Court'), whereby the Executing Court has rejected the review petition as well as the application seeking refund of the amount deposited by the petitioner in the execution petition No.33 of 1995. 2. The short facts, giving rise to the present petition, are that the petitioner-plaintiff had filed the suit for specific performance of the agreement against the respondent-defendant with regard to the land in question. The said suit was decreed by the Trial Court vide the judgment and decree dated 31/05/1995, whereby the Trial Court directed the petitioner-plaintiff to deposit a sum of Rs. 19,000/- within two months of the decree, and directed the respondent-plaintiff to execute the sale deed in favour of the petitioner on such deposit being made by the petitioner. The petitioner thereafter filed the execution petition and deposited a sum of Rs. 19,000/- on 10/18th July, 1995 pursuant to the said judgment and decree. According to the petitioner, he came to know during the pendency of the execution petition that one Gopal S/o. Ganesh Lal Bairwa had filed an objection petition to the effect that out of the total area of land in question, he had purchased 1 bigha 6 biswas by a registered sale deed from the respondent, and therefore, the respondent-defendant could not have executed the sale deed in respect of the entire land in question. The petitioner therefore filed an application seeking refund of Rs. 13,000/- out of Rs. 19,000/- deposited by him before the Executing Court. The Executing Court by the order dated 21/11/2002 rejected the said application. The Executing Court also vide the said order allowed the application of the respondent-defendant dated 11/05/2000 by directing the petitioner to pay Rs. 19,000/- to the respondent. The petitioner thereafter filed the review petition before the Executing Court, which was also dismissed vide the order dated 24/01/2003. Being aggrieved by the said orders dated 21/11/2002 and 24/01/2003, the present revision petition has been filed. 3. It is submitted by the learned counsel Mr. 19,000/- to the respondent. The petitioner thereafter filed the review petition before the Executing Court, which was also dismissed vide the order dated 24/01/2003. Being aggrieved by the said orders dated 21/11/2002 and 24/01/2003, the present revision petition has been filed. 3. It is submitted by the learned counsel Mr. Rahul Choudhary for the petitioner that the petitioner having come to know during the course of execution petition that part of the land in question i.e. 1 bigha 6 biswas was already purchased by one Gopal S/o. Ganesh Lal Bairwa, and therefore, the petitioner was entitled to the refund of Rs. 13,000/- out of Rs. 19,000/- deposited by him, pursuant to the decree passed in the suit. He submitted that the Executing Court has committed an error in holding that the petitioner was aware about the said sale of the part of the land to Gopal. He further submitted that both the orders being illegal, the same deserve to be set aside, and the petitioner be granted refund of Rs. 13,000/-. 4. At the outset, it is required to be mentioned that the petitioner, in the present revision petition, has challenged the order dated 21/11/2002, whereby the Executing Court had rejected the application of the petitioner seeking refund of the amount deposited by him, and also the order dated 24/01/2003 dismissing the review petition. As per the proviso to Section 115 of CPC, the High Court cannot vary or reverse any order made in the course of the proceedings, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of such proceedings. Mr. Rahul Choudhary appearing for the petitioner has failed to point out as to how the proceedings would be finally disposed of, if the order is passed in favour of the petitioner in the present revision petition. That apart, as transpiring from the impugned orders, the fact of the respondent having sold out part of the land in question ad-measuring 1 bigha and 6 biswas to one Gopal was already brought to the notice of the petitioner-plaintiff in the suit itself, and therefore, the petitioner was aware about the said fact. Admittedly the petitioner had not challenged the conditional decree passed by the Trial Court in the suit directing him to deposit Rs. 19,000/- for the execution of the sale deed in his favour. Admittedly the petitioner had not challenged the conditional decree passed by the Trial Court in the suit directing him to deposit Rs. 19,000/- for the execution of the sale deed in his favour. Therefore, the Executing Court has rightly observed that by entertaining the application of the petitioner for refund of Rs. 13,000/- out of Rs. 19,000/- deposited by him, it would amount to reopening of the case in the execution proceedings. There being no illegality or infirmity in the impugned orders passed by the Executing Court, this Court is not inclined to interfere with the said orders. 5. In that view of the matter, the revision petition being devoid of merits deserves to be dismissed and is, accordingly, dismissed.Petition Dismissed. *******