- (1.) THE present petition is directed against the order dated 29th January, 2009 passed by the Executing Court in Civil Execution Petition No. 5/07.
(2.) THE present respondent No.1-original plaintiff and the decree-holder had filed the Execution Petition being No. 5/07 seeking execution of the decree passed in Civil Suit No. 24/93, whereby the trial court had interalia directed the petitioner-original defendant to handover the possession of the disputed shop No.21. In the said Execution Petition the petitioner being judgment-debtor raised objections by filing an application, which was replied to by the respondent-judgment-creditor by filing a reply alongwith an affidavit in support thereof. THE petitioner thereafter submitted an application under Section 151 of CODE OF CIVIL PROCEDURE, 1908 seeking permission to cross-examine the respondent-decree-holder in view of the said affidavit filed by him. THE said application has been rejected by the Executing Court vide the impugned order dated 29.1.09. Being aggrieved by the said order the present petition has been filed by the petitioner. It has been submitted by the learned counsel Mr. Rajendra Kumar Sharma for the petitioner that there was a basement under Shop No.21 which fact was denied by the respondent-decree-holder in his affidavit and, therefore, the petitioner wanted to cross-examine the respondent. According to him the Executing Court has wrongly dismissed his application. On the other hand, the learned counsel for the respondent has submitted that the Execution Petition was filed by the respondent with regard to the decree of eviction pertaining to Shop No. 21 and there being no other evidence led on behalf of the decree-holder, the petitioner had no right to cross-examine. He also submitted that the present petition has been filed with a view to prolong the execution proceedings. Having regard to the submissions made by the learned counsels for the parties and to the impugned order, it appears that the Executing Court has rejected the application of the petitioner to cross-examine the respondents on the ground that the execution proceedings pertain to the disputed shop No.21, as per the decree passed in the suit. It has also been observed by the Executing Court in the impugned order that the defendant-judgment debtor had not taken up any such contention in the written statement in the suit that there was any basement under the Shop No.21, as sought to be raised in the execution proceedings. In the opinion of this court, there is no illegality or infirmity in the said observations made by the Executing Court in the impugned order. This court exercising limited jurisdiction under Article 227 of the Constitution of India is therefore not inclined to interfere with the said order. The petition being devoid of merits deserves to be dismissed and is accordingly dismissed.;