Decided on January 30,1973


Cited Judgements :-



T.U.MEHTA - (1.)This appeal arises out of execution application No. 37 filed by the appellant in the court of Civil Judge Junior Division at Anjar Kutch district. The appellant-decree holder has obtained the decree which is sought to be executed in civil suit No. 95/61 of that court on 5th December 1962 That decree was for possession and recovery of arrears of rent. It appears that the suit property about which the decree is passed was mortgaged with the appellant-decree holder by Dungershi Jivandas the father of the judgment-debtors. It was a mortgage with possession. The mortgagor therefore executed a rent note in favour of the decree holder. It was on the basis of this rent note that the above referred civil suit No. 95/71 was filed by the decree holder. That suit was filed against the present respondents in their capacity as the legal representatives of Dungershi. It is an admitted fact that at the time when the said suit was instituted on 16-10-61 Dungershi had already died and therefore the present respondents were in possession of the suit property as statutory tenants. The suit was resisted by some of the present respondents including the respondent No. 1. However it ended in a decree dt. 5-12-1962. According to this decree the respondents were asked to hand over the vacant possession of the suit shop on or before 10-1-1963 and also to pay up the amount of arrears of Rs. 1160/to the decree holder. The operative portion of this decree is as under:
" A decree be passed with costs in favour of the plaintiff. The defendants to hand over the vacant possession of the suit shop to the plaintiff on or before 10-1-63 and the plaintiff to get Rs. 16.12 np. per month as compensation till he gets possession. The defendants also to pay the amount of Rs. 1160/to the plaintiffs. The defendants to bear their costs.

(2.)After this decree was passed the decree holder filed execution application No. 2/63 and obtained the actual possession of the suit premises on 10th January 1963 Thereafter in the year 1965 the decree holder filed another execution application bearing No. 25/65 for realising the amount of Rs. 1756.52. For realising this amount he also attached the respondents right of redemption of the suit property. This attachment was resisted by the respondents but ultimately the said execution application was withdrawn by the decree holder on 26-9-1968.
(3.)It was thereafter that the present execution application has been filed by the decree holder on 20th August 1969 for realising the amount due under the decree which is sought to be executed. For realising this amount the decree holder has sought to attach the moveable properties of respondents Nos. 1 and 4. The court initially issued warrant of attach. ment without issuing a prior notice to the judgment-debtors. But before this warrant of attachment could be executed the respondent No. 1 filed objections on 1-9-1969 as found at Ex. 7. On these objections the court ordered that warrant should not be executed till the judgment-debtors filed their objections on or before 12-9-1969. These objections appear to have been filed by the judgment-debtors on 22nd September 1969 The executing court thereafter disposed of these objections by rejecting them and ordered the execution to proceed further.

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