- (1.) THIS petition has been filed against the order dated 31st May, 2012 passed by the Civil Judge (Sr. Division), Nasirabad, Ajmer as the executing court, wherein the court has dismissed an application under Section 151 of CPC filed by the petitioner-objector to call for the evidence of the defendant's in the suit for eviction, which was decreed by the trial court as early as 17th March, 2001.
(2.) THE facts of the case are that at the instance of Om Prakash a suit for eviction was laid against Smt. Shanti, Smt. Janki, Smt. Sariya and Smt. Manju. The said suit was decreed on 17th March, 2001 by the court of Civil Judge (Sr. Division), Nasirabad, Ajmer. The judgment and decree dated 17th March, 2001 was sustained upto this court, the Civil Second Appeal being dismissed sometime in the year 2010, as fairly submitted by the counsel for the petitioner. Om Prakash filed an execution application numbered 3/11 before the executing court. Thereupon, the petitioner Balkishan Pathriya appeared as objector (hereinafter the objector). The case of the objector Balkishan Pathriya before the executing court was that the property of which possession was sought to be obtained in the context of the judgment and decree dated 17th March, 2001, was not the property which was the subject matter of the suit for eviction which has been decreed by the learned trial court. The said objection by the objector under Order 21 Rule 97 of CPC was however, dismissed by the executing court. An Execution First Appeal followed before the District Judge, whereupon on notice the judgment-debtors namely Smt. Shanti, Smt. Janki, Smt. Sariya and Smt. Manju appeared and are stated to have submitted before the court that the possession of the property which was the subject matter of the eviction suit had already been handed over by them to the plaintiff Om Prakash. The Appellate Court, consequently, vide order dated 22nd February, 2012 remanded the matter to the executing court directing the parties before it to appear before the executing court on 1st March, 2012 for the purpose of leading whatever evidence they sought to lead with regard to the execution of the decree dated 17th March, 2001.
(3.) THEREAFTER before the executing court, an application under Section 151 of CPC was moved by the objector praying that the proforma/non-applicants i.e. judgment-debtors namely Smt. Shanti, Smt. Janki, Smt. Sariya and Smt. Manju under decree dated 17th March, 2001 be called for by the executing court for leading all their evidence – purportedly beneficial to the objector and only thereupon the execution application filed by the plaintiff Om Prakash be further proceeded with and decided. The executing court considered the matter and dismissed the said application under Section 151 of CPC in exercise of its discretion by its order dated 31st May, 2012. This is under challenge.;