Decided on April 27,2020

Ambersing Respondents


- (1.) By this writ petition, the petitioner seeks quashing and setting aside the order dated 24.09.1999 passed by the learned Civil Judge, Junior Division, Bhusawal, below Exh.41 and 72 in Regular Darkhast No. 4 of 1989.
(2.) Brief facts giving rise to the present writ petition are as follows:- The petitioner-original plaintiff had instituted Regular Civil Suit No. 137 of 1978 for specific performance of contract and possession. The learned Civil Judge, Junior Division, Bhusawal by judgment and decree dated 16.07.1986 decided the suit exparte and further the legal heirs of deceased defendant No.1 and defendant No.2 were directed to execute the sale deed in favour of petitioner-plaintiff and deliver the possession of the suit land on receiving the amount of Rs.3000/- within a period of one month from the date of order. The said judgment and decree has attained finality. Admittedly, the petitioner has not deposited the amount within one month but deposited the said amount of Rs.3000/- on 01.04.1989. The petitioner had also deposited the Court Commissioner's fees and accordingly the Court Commissioner had executed the registered sale deed on 06.09.1991 under the orders of the court and submitted report to the court regarding registration of the sale deed. Pending Darkhast, the petitioner had filed an application Exh.41 praying for possession warrant for execution of decree. However, the respondents-judgment debtors filed an application Exh.72 contending therein that the decree cannot be executable as it suffers from various infirmities, including the fact that the petitioner failed to deposit the amount on or before 15.08.1986. The petitioner-decree holder has strongly resisted the application Exh.72 by filing say at Exh.79. By the impugned order dated 24.09.1999 passed below Exh.41 and 72, in Regular Darkhast No. 4 of 1989, the learned Judge of the executing Court sustained the objection raised vide Exh.72 and held that once the possession warrant cannot be issued the decree will not survive. Hence, this writ petition.
(3.) Learned counsel for the petitioner submits that by filing an application Exh.41, the petitioner has prayed for issuance of possession warrant in view of execution of registered sale deed through the Court Commissioner in favour of the petitioner. Learned counsel submits that the present respondents-judgment debtors in the meantime had instituted the Regular Civil Suit No. 132 of 1994 for setting aside the judgment and decree passed in Regular Civil Suit No. 137 of 1978 and also filed an application for interim relief to protect their possession. However, the said application came to be rejected and the order was also confirmed by the learned District Judge in Misc. Civil Appeal No. 44 of 1997. Learned counsel submits that the time was not essence of the order passed by the trial court while passing the decree and it is apparent from the fact that when the application under Section 148 of Civil Procedure Code was filed, the amount was accepted by the executing court. Furthermore, the respondents-judgment debtors have not raised objection at any point of time in pursuance of acceptance of the said amount, though notices were issued to the respondents-judgment debtors to submit their say under Order XXI Rule 22 of C.P.C. On 18.09.1989, the respondents-judgment debtors though received notice of the Court Commissioner did not object to the execution of decree by executing the sale deed. Even after execution of sale deed through the Court Commissioner, the sale deed was registered with the office of Sub Registrar, Bhusawal and compliance report was submitted by the Court Commissioner to the Court. Learned counsel submits that later on by filing an application Exh.72 a feeble attempt was made to raise objection with regard to the exparte order and the right of the minors to be represented by the guardian. Learned counsel submits that so far as application Exch.72 is concerned, there is no specific pleading to the effect that since the amount of Rs.3,000/- was not deposited within time, the execution petition is liable to be dismissed. What was objected by the respondents-judgment debtors was with regard to the nature of exparte decree and the rights of the minor being represented through the guardian. Learned counsel submits that the amount was accepted by the executing Court and since the sale deed also came to be executed, the application Exh.72 ought to have been rejected by the trial court. Learned counsel submits that the directions in the decree fixing the time to deposit the amount being incidental in nature, the executing court was competent to accept the amount by extending the time. Learned counsel submits that the executing court erred in arriving at the conclusion that there was non- compliance of provisions of Section 148 of C.P.C. and therefore, the decree is not executed. The executing Court has also erred in arriving at the conclusion that since there was delay of 3 years in depositing the amount and there was no explanation offered by the decree holder, no right is accrued in his favour to take the possession. ;

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