Bela M. Trivedi, J. - (1.) THE present second appeal filed under Section 100 of CPC, by the appellant -objector arises out of the judgment and decree dated 8.4.11 passed by the District Judge, Jaipur District, Jaipur (hereinafter referred to as 'the appellate court') in Civil Appeal No. 18/09, whereby the appellate court has confirmed the judgment and decree dated 30.1.09 passed by the Civil Judge, Jr. Division, Sanganer, District Jaipur (hereinafter referred to as 'the executing court') in the Execution Case No. 7/07. Before proceeding further on the merits of the appeal, it may be stated that during the courts of arguments, the learned counsel Mr. Sudesh Bansal for the respondent -decree -holder had drawn the attention of the court that the appellant -objector had also filed an application under Section 47 of CPC before the executing court, though his application under Order XXI Rule 97 of CPC raising same objections against the execution of the decree in question was pending.
(2.) THE learned Sr. counsel Mr. M.M. Ranjan for the appellant, in view of the said submission made by the learned counsel Mr. Sudesh Bansal for the respondent, submitted an application dated 5.9.12 seeking permission to withdraw the present appeal. However, the learned counsel for the respondent has raised the objection against permitting the appellant to withdraw the appeal, by filing the reply dated 6.9.12. It has been contended inter alia that the application under Section 47 of CPC filed by the appellant -objector was not maintainable and that the present appeal, which arises out of the order passed by the executing court on the application filed under Order XXI Rule 97 of CPC, is pending since last more than one year, and in which the interim order was also granted by the court, which had adversely effected the respondents. The court, therefore, considering the objections raised by the learned counsel Mr. Bansal for the respondent, did not permit the learned counsel for the appellant to withdraw the present appeal and directed him to make his submissions on the merits of the appeal. So far as the merits of the appeal are concerned, it appears that initially the respondent -original plaintiff had filed the suit being No. 509/96 against one Ashok Kumar and others -original defendants seeking demolition of the construction raised on plot No. 208 and for possession of the said plot. It was alleged in the said suit that the plaintiff was the owner of the plot No. 208, purchased by him from one Krishna Bihari, through a registered sale -deed dated 10.4.85, and that the said Krishna Bihari had purchased the said plot in an auction sale held by the Gram Panchayat, Bhankrota. It was also alleged that the said defendant Ashok Kumar had encroached upon the plot No. 208 belonging to the plaintiff and had raised illegal construction thereon. In the said suit the defendant Ashok Kumar had filed the written statement denying the allegations made in the plaint and further contending inter alia that he had purchased the plot No. 209 from Gram Panchayat, Bhankrota and had put up construction on the plot No. 209. He had also contended that he had already sold out the plot No. 209 to one Amar Singh by registered sale -deed on 2.3.90. In the said suit the subsequent purchaser Amar Singh therefore was impleaded as the party -defendant No. 6. The said suit was decreed by the Civil Judge (JD), Sanganer, District Jaipur vide the judgment and decree dated 23.8.06. Since nobody challenged the said judgment and decree before the higher forum, the respondent -plaintiff filed the execution proceedings before the executing court. When the Nazir went to take possession of the plot No. 208 for the execution of decree, the present appellant Suresh Kumar resisted the Nazir from taking possession of plot No. 208, and then filed the objection application before the executing court under Order XXI Rule 97 of CPC. The said objection application was dismissed by the said executing court vide the judgment and order dated 30.1.09. Being aggrieved by the same, the appellant had preferred the appeal being No. 18/09 before the appellate court, which has been dismissed vide the impugned judgment and order dated 8.4.11. Being aggrieved by the said order of the appellate court, the present second appeal has been filed by the appellant under Section 100 of the CPC.
(3.) IT has been sought to be submitted by the learned senior counsel Mr. Ranjan for the appellant that the both the courts below had mis -appreciated the evidence on record and recorded the findings against the appellant which are perverse, so far as the possession and ownership of plot No. 208 are concerned. According to Mr. Ranjan the executing court was obliged to decide all questions raised by the appellant, as per Rule 101 of Order XXI of CPC and was also obliged to decide the same as if it was the suit. Mr. Ranjan also submitted that the appellant was entitled to file an application under Section 47, though his application under Order XXI Rule 97 of CPC was pending at the relevant time.;