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2017 DIGILAW 353 (JK)

National Fertilizers Ltd. v. Vijay Kumar

2017-07-17

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Heard. This intra court appeal has been preferred against the judgment dated 09.03.2017 passed by the learned Single Judge in CIMA No.468/2011 by which the learned Single Judge has remitted the matter for decision afresh on the application under Order 21 Rule 58 of the Code of Civil Procedure. 2. Facts giving rise to the filing of this appeal stated are that respondent No.1 filed an application under order 21 Rule 58 in an execution proceeding. However, the Trial Court vide order dated 08.06.2011 without regarding the evidence in a summary manner dismissed the objections preferred by the respondent No.1. Being aggrieved, the respondent No.1 preferred the CIMA before this court. The Learned Single Judge vide Judgment dated 09.03.2017, set-aside the order passed by the trial court dated 08.06.2011 and remanded the matter to the Trial Court for decision afresh on merits after recording the evidence. 3. Learned counsel for the appellants submitted that the respondent No.1 had not produced any document or order, and, therefore, prima facie, there was no triable question raised in the application under Order 21 Rule 58 of the CPC and therefore, the learned Single Judge ought not to have summarily rejected the application under Order 21 Rule 58 of the CPC. 4. We have considered the submissions made by learned counsel for the appellant. Admittedly, in proceeding under Order 21 Rule 58 of the CPC, all the questions has to be decided in that very proceeding and not by way of a separate suit. From Paragraph 14 of the Order passed by the Learned Single Judge, we find that the learned Single Judge has formulated the question which arises for consideration and in paragraph 15 has referred the document on the basis of which the claim of respondent No.1 is founded in respect of the property is question. While passing the order dated 08.06.2011, the Trial Court had committed a procedural irregularity inasmuch as application under Order 21 Rule 58 of the CPC has to be decided like a civil suit and the evidence in the aforesaid proceeding is required to be recorded. 5. In view of the findings contained by the learned Single Judge in paragraph 14 and 15 of the judgment, we are not inclined to interfere with the judgment passed by the learned Single Judge. 5. In view of the findings contained by the learned Single Judge in paragraph 14 and 15 of the judgment, we are not inclined to interfere with the judgment passed by the learned Single Judge. However, we direct the Trial Court to conclude the adjudication on the application under Order 21 Rule 58 of the CPC within a period of three months from the date of receipt of certified copy of the order passed today. Needless to state that the parties to the proceeding shall cooperate with for early decision of the proceeding and shall not seek any unnecessary adjournment. 6. With the aforesaid direction, the appeal stands disposed of.