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2014 DIGILAW 525 (RAJ)

Guljar Singh v. Abdul Munir Khan

2014-02-21

BELA M.TRIVEDI

body2014
JUDGMENT 1. - The present writ petition has been filed by the petitioner-objector-judgment debtor challenging the order dated 6.2.14 in the Execution Proceeding No. 4/12 passed by the Addl. District & Sessions Judge No.5, Jaipur Metropolitan, Jaipur (hereinafter referred to as 'the executing court') whereby the executing court has allowed the application of the respondent-judgment creditor for issuance of possession warrant and permitted him to execute such warrant with the help of police. 2. It appears that the respondent had filed the suit against the petitioner-defendant seeking possession of the disputed area of plot No. 130. The said suit was dismissed on 23.8.97 by the trial court against which the Regular First Appeal being No. 276/97 was preferred by the respondent before the High Court. The High Court passed the judgment and decree dated 26.7.05 on the basis of the submissions made by the learned counsels for the parties. The relevant part of the decree reads as under:- "While passing a decree in favour of the appellant for the possession of the plot No. 130, it is hereby ordered that in case the respondents submit the undertaking by 15.09.2005 to willingly handover the vacant and peaceful possession of the area 38'.6"/38'.3"x20' out of the plot No. 130 and remove the constructions which exists on the said area on or before 31.12.2005, the decree in this suit for possession of the plot No. 130 would be limited to the area 38'.6"/38'.3"x20' only. However, in case the respondents fail to submit the said undertaking by 15.09.2005 to handover the said area of 38'.6"/38'.3"x20' of plot no. 130 on or before 31.12.2005 to the decree-holder appellant, the decree-holder appellant would be entitled to the possession of entire area of plot No. 130. Measuring 48'.6"/48'3"x20' along with mesne profits at the rate of Rs. 50/- per month from the date of filing of the suit." 3. It appears that though the petitioner-judgment-debtor had submitted the undertaking by 15.09.2005, he did not handover the possession of the disputed area of the plot No. 130 on or before 31.12.05 and, therefore, the respondent-judgment creditor filed the execution proceedings before the executing court. In the said proceedings, the petitioner had filed the objection under Section 47 read with Section 151 of CPC, however the executing court passed the impugned order directing the issuance of possession warrant against the petitioner as stated hereinabove. 4. In the said proceedings, the petitioner had filed the objection under Section 47 read with Section 151 of CPC, however the executing court passed the impugned order directing the issuance of possession warrant against the petitioner as stated hereinabove. 4. It is submitted by the learned counsel Mr. R.B. Mathur for the petitioner that the executing court should not have passed the impugned order without deciding the application filed by the petitioner under Section 47 read with Section 151 of CPC raising objection against the execution of the decree in question. While conceding that the petitioner had not handed over the possession as per the undertaking submitted by him, he submitted that the petitioner had already filed another suit in respect of the said plot in question and, therefore, the executing court was required to stay the proceedings till the said suit was decided by the competent court. 5. The court does not find any substance in any of the submissions made by the learned counsel for the petitioner. It is not disputed that the decree in question passed by the High Court in Regular First Appeal No. 276/97 had become final and the petitioner had also submitted an undertaking as directed in the said decree, however the petitioner had failed to handover the possession of the disputed area of the plot No. 130. The petitioner having not complied with the directions given in the decree, the executing court has rightly issued the possession warrant as per the impugned order. 6. There being no illegality or infirmity in the impugned order passed by the executing court, the petition deserves to be dismissed and is accordingly dismissed.Petition dismissed. *******