- (1.) IN the connected second appeal No. 45 of 1994, originally order of stay was granted. But subsequently the same was not extended. Ultimately at the moment no stay order is operating in support of the said second appeal. The execution arising out of the decree which was subject matter of second appeal was sought to be proceeded with by the decree-holder. The judgment-debtor had filed an objection in the said execution proceeding which was rejected by the executing court by order dated 3-4-1995. A revision was then preferred being Civil Revision No. 84 of 1995. The said revision also stood rejected by order dated 29-7-1995. Against the said order the present writ petition No. 21763 of 1995 has been preferred. IN the present writ petition an interim order was obtained on 11-8-1995 to the extent that until further orders the petitioners shall not be evicted from the accommodation in dispute. The said interim order has been sought to be affected by means of present application dated 24-8-1996.
(2.) THE learned counsel for the respondents vehementally pressed the said application. THE learned counsel for the petitioner on the other hand opposed the said application. THE hearing of the application for vacating the interim order, in fact, would decide the merit of the writ petition itself. Accordingly, both the learned counsel for the parties addressed the Court on merit of the writ petition itself. The learned counsel for the petitioners contend that the revisional Court did not decide the objection on merit. It had only proceeded on the basis that since the second appeal stood dismissed and though restored but there being no interim order there was no bar in proceeding with the execution proceeding. According to the learned counsel for the petitioners, the order passed by the revisional court suffers from failure to exercise the jurisdiction vested in it. In asmuch as the revisional court did not decide the objection raised by the judgment-debtor on its merit. He secondly contends that the executing court also avoided to decide the objection on the ground that the executing court does not have jurisdiction to decide such an objection. On these two grounds he contends that the orders impugned are bad and are liable to be set aside. The learned counsel for the respondents on the other hand contends that the learned executing court had found that the objection was frivolous and was being raised for the purposes of delaying the execution he further contends that objection sought to be raised, in fact, amounts to raising fresh issue on the basis of fresh pleading, which never finds place either in the written statement or at any point of time to have been raised by the petitioner herein. There was no material before the Court below with regard to the objection now sought to be raised. According to him the executing Court cannot go behind the decree. A decision on the said point would amount to going behind the decree, the objection raised cannot be raised in the application filed under S. 47, CPC. He also points out that the objection which was sought to be raised does not find place in any of the grounds taken in the writ petition. He has also not made any application under Order 41, Rule 27 of the Code of Civil Procedure in the second appeal so as to bring those facts on record. On these grounds he contends that the interim order cannot be sustained and the writ petition also cannot be maintained.
(3.) AFTER having heard the learned counsel for the parties it appears that in the writ petition no grounds have been taken with regard to the objection sought to be raised in the application under S. 47 of the Code of Civil Procedure. No mention of the ground sought to be raised in the application under S. 47 finds mention in any of the grounds mentioned in the second appeal, the record whereof was placed before this court and which have been perused by me. It is admitted position. The objection which has been sought to be raised has very fairly been acknowledged by the learned counsel for the petitioner that the same has never been raised either in the suit or in the appeal before the lower appellate Court or in the second appeal. Neither he had filed any application under Order 41, Rule 27 of the Code of Civil Procedure in the Second Appeal nor he has amended his written statement or had made any application for amendment of the written statement at any stage. However, he sought to defend his case on the ground that this fact was not known to the petitioner earlier. The allegation raised is trial the decreeholder had purchased the property from one Ganeshi Bai widow of the original owner. Whereas at present it is being contended in the application under S. 47 that the original owner's wife was Rajabeti and there was no lady in the name of Ganeshi Bai and Ganeshi Bai was never the widow of the original owner. Therefore, the decree holder is not entitled to execute the decree.;