GANESH VILAS NEAR KITTUR v. SAMUEL BABURAO DHAWALE
2015-01-20
ARAVIND KUMAR
body2015
DigiLaw.ai
ORDER 1. The unsuccessful judgment debtors in Execution Petition No.123/2013 are calling in question order passed on I.A. No.1, whereunder application filed by them under Order 21 Rule 29 read with Section 151 CPC to set aside the execution of the decree passed in O.S. No.89/1999 dated 15.11.2000 till the disposal of the suit O.S. No.351/2013 said to be pending before the III Additional Civil Judge, Hubli has been rejected. 2. Though writ petition is listed for orders for non–compliance of office objections, this Court has examined as to whether further time should be granted to comply with the office objections or not and for this limited purpose merits of the case is examined. Impugned order is dated 10.10.2013 writ petition has been filed on 29.11.2013, one year one month has lapsed office objections have not been complied. None have appeared on behalf of petitioners. This would only indicate that keeping this writ petition pending by granting further adjournment would result in piling up of the pendency and it would not serve any fruitful purpose. Hence, in order to do substantial justice impugned order is examined by me on merits. 3. Judgment debtors 1 and 2 have filed an application under Order 21 Rule 29 CPC to set aside the execution of the decree passed in O.S. No.89/1999. It has been contended in the affidavit supporting the application that during the pendency of the said suit applicant has filed a suit O.S. No.351/2013 before the III Additional District Judge, Dharwad and an order of temporary injunction came to be granted in favour of plaintiff therein by restraining the defendant from interfering with plaintiff’s possession. Hence, it was contended that compromise decree entered into in O.S. No.89/1999 between the decree holder and father of the judgment debtors is not binding on the applicants. As such, they sought for stay of said execution proceedings No.123/2013 which had been initiated by the decree holder. The said application came to be resisted contending that person who has filed the suit O.S. No.351/2013 is in no way concerned to the decree and also the suit property and judgment debtor No.2 in collusion with his son i.e., judgment debtor 1 has got filed O.S. No.351/2013 through third party. Hence, he sought for dismissal of the application.
The said application came to be resisted contending that person who has filed the suit O.S. No.351/2013 is in no way concerned to the decree and also the suit property and judgment debtor No.2 in collusion with his son i.e., judgment debtor 1 has got filed O.S. No.351/2013 through third party. Hence, he sought for dismissal of the application. Executing Court has noticed that application filed on 01.08.2013, I.A. No.1 had been heard on 07.08.2013 and had been posted for orders on 16.08.2013 and on that day there was no sitting and as such, it came to be adjourned to 19.08.2013 and on that day third party applicant had filed an application under Order 21 Rule 97 CPC and after recording the evidence, it came to be disposed of on merits by dismissing the said application and the present application filed by the application to permit the judgment debtor to argue on I.A. No.1 which had been rejected also came to be considered by the executing Court and found that plaintiff in O.S. No.351/2013 is a third party to execution proceedings and he is no way concerned with the compromise decree and even otherwise the application filed by the third party himself in the present execution petition having already been dismissed, there was no need or necessity to allow the present application. Accordingly, it has rejected the said application which is inconsonance with the Order 21 Rule 29 CPC. There is no infirmity. Hence, granting of time to comply with office objections does not arise. Writ petition is hereby dismissed.