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2017 DIGILAW 2421 (RAJ)

Devaram Pargi v. Amrit Lal

2017-11-03

DINESH MEHTA

body2017
JUDGMENT : Dinesh Mehta, J. On the last date i.e. 27.10.2017, this Court has posed a question regarding maintainability of the present writ petition, as according to prima facie opinion of this Court, an execution appeal would lie against the order rejecting an application under section 47 of the Code of Civil Procedure. 2. Mr. C.P. Soni, learned counsel appearing for the petitioner invited attention of this Court towards the definition of decree as given in definition of Clause 2(2) of the Code of Civil Procedure, wherein "Section 47" of the Code of Civil Procedure has been deleted w.e.f. 01.02.1977. 3. In support of his submission, he also invited attention of this Court towards the Division Bench judgment dated 12.12.1977, reported in 1978 AIR (Raj) 127 titled as "Mohan Das v. Kamla Devi". 4. In view of submission so made, this Court is satisfied that as against the order passed, pursuant to an application under Section 47 read with under Order 21, Rule 46 of the Code of Civil Procedure, a writ petition under Article 227, is maintainable. 5. The petitioner has come against the order dated 06.05.2017 passed by learned Civil Judge and Judicial Magistrate, District Pali, (hereinafter referred to as "Executing Court"), whereby the objections filed by petitioner, under Section 47 read with Order 21, Rule 46 of the Code of Civil Procedure dated 30.03.2017 has been rejected. 6. The facts in brief relating to the present case are that the plaintiff Amrit Lal filed a suit for seeking possession of the disputed plot, which suit came to be decreed by the learned Civil Judge, Senior Division, Pali, vide its judgment and decree dated 14.12.2007 and the suit was decreed in the following terms :- ^^15 & vr% okn&oknh fo:) izfroknhx.k ckcr dCtk IykV lO;; fuEukuqlkj fMØh fd;k tkrk gS%& 1 & okn i= ds pj.k la0 1 esa of.kZr IykV dk dCtk izfroknhx.k] oknh dks lqiqnZ djsA fu;ekuqlkj fMØh ipkZ eqfrZc gksA** 7. A decree in terms of the judgment came to be issued. A decree in terms of the judgment came to be issued. When the decree holder instituted proceedings for execution of the said decree, the petitioner-judgment debtor obstructed the same, by filing the objection dated 30.03.2017 contending that the surroundings of the disputed plot do not tally with the petitioners' plot and that the decree has been issued for a plot ad-measuring 40 x 60 feet whereas the plot belonging to the petitioner is of different size having 60 feet eastern side, 48 feet western side, 60 feet northern & southern side. The aforesaid objections filed by the petitioner has been rejected by the executing Court, inter alia observing that the judgment debtor-petitioner is the same person in whose presence the decree was passed, while holding that an identical application filed by the plaintiff had already been rejected by the Trial Court, vide its order dated 26.05.2016. 8. Heard learned counsel for the petitioner and considered the material available on record. 9. While passing the order impugned on 06.05.2017, the Court below has recorded a categorical finding that an identical application has already been rejected by the executing Court vide its order dated 26.05.2016. The petitioner has neither mentioned nor has placed the said order dated 26.05.2016 on record, even the same has not been produced for perusal of the Court, while arguing the case. Apart from such non-disclousre, the application under consideration filed by the petitioner is apparently frivolous, inasmuch as, the petitioner was a party to the suit proceedings and the decree had been passed in his presence. Even in the objections filed by the petitioner, he has not been able to show that the property which is possessed by him is not the same property, for which the decree has been passed. 10. The petitioner has failed to show any justifiable reason warranting any interference by this Court in the order impugned passed by the Executing Court. 11. There is no error of law or facts, requiring interference by this Court, under its supervisory jurisdiction under Article 227 of the Constitution of India. The writ petition is, therefore rejected.