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2022 DIGILAW 2388 (RAJ)

Lrs Of Shri Ram Lal v. Lrs Of Daulat Ram

2022-09-07

VIJAY BISHNOI

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ORDER 1. This writ petition has been filed on behalf of the petitioners being aggrieved with the order dated 27.10.2010 passed by the Civil Judge (J.D.), Churu (hereinafter to be referred as ’the executing court’), wherein while allowing the application preferred on behalf of the respondents under Order 47 Rule 1 and Order 21 Rule 106 read with Section 151 CPC the executing court has ordered for restoration of the execution proceedings. 2. The brief facts of the case are that one Daulat Ram filed a suit in the Court of Judicial Magistrate, Churu for recovery of an amount of Rs.3750/- against one Lok Chand. The suit was decreed in favour of Daulat Ram on 08.11.1989 on the basis of compromise arrived at between the parties. 3. In the year 1990, Daulat Ram filed an application for execution of the decree dated 08.11.1989 and in those execution proceedings the executing court ordered to attach the house of Daulat Ram and thereafter ordered to sold that house through auction. 4. In the auction proceedings held on 25.05.1991, Daulat Ram was allowed to participate and as being the highest bidder of the property, the sale of house was confirmed in his favour and sale certificate was issued in his favour. 5. It is noticed that from the auction proceeding an amount of Rs.10,000/- was generated and out of which, after deducting the decretal amount as well as the expenses, the remaining amount was given to defendant Lok Chand. 6. In the year 1992, the decree holder Daulat Ram filed an application before the executing court with a prayer for delivering the possession of the property in dispute. Before the executing court petitioner-Ram Lal filed an objection under Order 21 Rule 90 read with Section 151 CPC, however, the said objection was rejected by the executing court vide order dated 26.02.1993 while concluding that as Ram Lal had not filed any objection at the time of attachment of the house; auction of the house; issuance of sale certificate and has also failed to produce any evidence regarding his ownership of the property in question, therefore, he has no right to file any objection in the execution proceedings. 7. Another application filed by Ram Lal under Order 21 Rule 90 read with Section 151 CPC was also dismissed on 12.05.1993 by the executing court. 8. 7. Another application filed by Ram Lal under Order 21 Rule 90 read with Section 151 CPC was also dismissed on 12.05.1993 by the executing court. 8. During the pendency of the execution proceedings, the executing court had directed the decree holder to deposit amount for police aid for the purpose of recovering possession of the house in question. It appears that the decree holder failed to deposit the amount for the police aid and taking into consideration the above fact the executing court on 25.09.2006 dismissed the said execution proceedings. 9. Later on the decree holder has moved an application under Order 47 Rule 1 and Order 21 Rule 106 read with Section 151 CPC with a prayer for restoring the execution proceedings and the executing court vide impugned order dated 27.10.2010 has restored the same against which the petitioner has filed this writ petition. 10. Learned counsel for the petitioner has argued that as a matter of fact the decree passed by the trial court in a suit filed by Daulat Ram was a collusive decree. He has also argued that in the executing proceedings the executing court has not followed the mandatory procedure as laid down under the law. It is also claimed that the petitioners are the owner of the house and as such they can very well object the restoration of the execution proceedings. 11. Having heard learned counsel for the petitioner and after going through the material available on record, it is clear that the executing court vide order dated 26.02.1993 has rejected the objections filed by Ram Lal in execution proceedings with a clear finding that Ram Lal is not the owner of the property in question and never filed any objection at any point of time earlier, as such he has no right to file any objections in the execution proceedings. 12. Learned counsel for the petitioner has frankly admitted that against the said finding of the executing court the petitioners have not availed any remedy and the said finding of the executing court has attained finality. 13. In such circumstances, this Court is of the opinion that this writ petition preferred on behalf of the petitioners, who can be turned as ’strangers’ only, against the order of the executing court of restoration of the execution proceedings is not at all maintainable. 14. 13. In such circumstances, this Court is of the opinion that this writ petition preferred on behalf of the petitioners, who can be turned as ’strangers’ only, against the order of the executing court of restoration of the execution proceedings is not at all maintainable. 14. I have gone through the impugned order dated 27.10.2010, wherein the executing court while taking into consideration the fact that on account of miss-communication between the decree holder and their advocates the amount of police aid could not be deposited by the decree holder in time. It is also observed that the property was attached and put to auction and a sale certificate was also issued in favour of the decree holder, however, the possession of the property could not be delivered to him and if at this stage the decree holder is denied possession of the property for the reason that the amount of police aid has not been deposited by him in time, it would be lead to injustice, therefore, the execution proceedings are liable to be restored. 15. Taking into consideration the peculiar facts and circumstances of the case, wherein the decree was passed in favour of the decree holder and he purchased the property in question in auction after taking permission from the Court and a sale certificate has also been issued in his favour, I am of the opinion that in the interest of justice the executing court has not committed any illegality in restoring the executing proceedings vide impugned order. 16. In view of the above discussions, I do not find any merit in this writ petition and the same is, therefore, dismissed. 17. Stay petition is also stands dismissed.