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Ram Nath v. Sona Devi And Others - WRIT - C No. 29891 of 2006  RD-AH 18825 (7 November 2006)
COURT NO. 6
CIVIL MISC.WRIT PETITION NO.29891 OF 2006
Ram Nath Vs. Sona Devi and others
Hon'ble Tarun Agarwala, J.
Heard Sri Rakesh Pandey, the learned counsel for the petitioner and Sri D.S. Yadav, the learned counsel appearing on behalf of respondent Nos. 7,9 and 10.
The petitioner is the judgment debtor and has filed the present writ petition praying for the quashing of the orders dated 16.11.2005, 17.11.2005, 2.2.2006 and 3.5.2006 passed by the executing court in execution proceedings No.12 of 1983 arising out of Original Suit No.62 of 1970. The plaintiffs had instituted a suit for possession which was dismissed by the trial court as well as by the appellate court. The second appeal of the plaintiffs was allowed by the High Court and the suit was decreed and the defendant was directed to remove the constructions. During the pendency of the execution proceedings, it is alleged that the judgment debtor purchased a share of the property from one of the plaintiffs, namely, Sri Mahendra Pratap and thereafter, the judgment debtor filed an application before the executing court, that the share of the decree holders including that of the judgment debtor should be determined before executing the decree. This application was rejected by the executing court by an order dated 5.11.1997. A civil revision was filed which was allowed by an order dated 13.8.2002. The revisional court directed the executing court to determine the share of the decree holders including the share of the judgment debtor before proceeding further with the execution proceedings.
It transpires that during the execution proceedings, one Sri Vijay Vikram Singh started claiming the entire land including the share of the judgment debtor. It transpires that he filed a writ petition which was disposed of directing the executing court to dispose of the execution proceedings expeditiously. It further transpires that Sri Vijay Vikram Singh sold the entire property to Sri Ram Briksh Yadav and Shanti Devi, the respondent nos. 9 and 10 in the present writ
petition by means of a sale deed. It has also come on record that the judgment debtor has filed a suit for the cancellation of the sale deed on the ground that Sri Vijay Vikram Singh had no authority to execute a sale deed of the entire land in which the judgment debtor also had a share. It is also alleged that an order of status quo has been passed in that suit which is still operating.
It further transpires that Ram Briksh Yadav and Shanti Devi filed an application for being impleaded in the execution proceedings on the ground that they have now stepped into the shoes of the decree holders. This application was allowed by an order dated 16.11.2005. It transpires that an application 66-Ga was filed, which was disposed of by an order dated 17.11.2005 allowing the execution case on the ground that Ram Briksh Yadav and Shanti Devi are now the sole owners of the land in question. By an order dated 26.11.2005, the executing court directed the decree holder to do the necessary pairvi. It transpires that the judgment debtor filed an application 77-Ga for the recall of the order dated 17.11.2005, which was dismissed by an order dated 2.2.2006, against which a revision was filed which was also dismissed by an order dated 3.5.2006. Consequently, the present writ petition.
The learned counsel for the judgment debtor submitted that the order dated 17.11.2005 was manifestly erroneous in law, inasmuch as the executing court had not determined the share of the judgement debtor pursuant to the order of the revisional court dated 13.8.2002 nor the objection of the petitioner, filed under section 47 C.P.C. , had been decided. Consequently, the order of the executing court, allowing the execution application, and holding that Ram Briksh Yadav and Shanti Devi are the sole owners of the entire property, was patently erroneous.
On the other hand, the learned counsel appearing for respondent nos.7,9 and 10 submitted that the objection of the judgment debtor under section 47 C.P.C. was rejected by the executing court by an order dated 5.11.1997 and that by an order dated 17.11.2005, the executing court had determined the share of the parties and found that
Sri Ram Briksh Yadav and Shanti Devi are the owners of the entire share of the property in question. Consequently, the order of the revisional court dated 13.8.2002 has been complied by the executing court while allowing the execution application.
From a perusal of the order dated 17.11.2005, it is clear that the executing court has not determined the share of the decree holders and the petitioner and has presumed that Ram Briksh Yadav and Shanti Devi are the owners of the entire land on the basis of a sale deed executed in their favour. The executing court had not considered the sale deed executed by Sri Mahendra Pratap, one of the decree holders in favour of the judgment debtor nor has given any finding on the extent of the share that came in the share of the present petitioner. Further, the executing court was required to dispose of the objection of the judgment debtor under Section 47 C.P.C. In the absence of any finding on this aspect, as stated aforesaid, the impugned order cannot be sustained. Consequently, the writ petition is allowed. The order dated 17.11.2005 passed by the executing court is set aside. The executing court is directed to determine the shares of the decree holders including the shares of the judgment debtor pursuant to the direction given by the revisional court dated 13.8.2002 and simultaneously decide the objection of the judgement debtor filed under section 47 C.P.C. which is still pending pursuant to the order dated 13.8.2002. The execution proceedings will proceed on a day to day basis and will be decided finally within three months from the date of the production of a certified copy of this order. In the circumstances of the case, parties will bear their own cost.
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