Dr. Vineet Kothari, J. - (1.) THIS Execution First Appeal is arising out of the Order dated 07.04.2011 passed by the learned Additional District Judge, Sumerpur, District Pali in Misc. Execution Case No. 5/2010 who rejected the application filed under Order 21 Rule 97 read with Section 151 of the Code of Civil Procedure by the applicants -objectors against execution of the decree dated 07.10.2004 which was passed in Civil Original Suit No. 88/1990 Jawan Mal Vs. Chunni Lal by which decree in the suit for specific performance of the contract was decreed in terms of the compromise between the parties, in favour of the plaintiff -Jawan Mal (decree -holder).
(2.) THE present Execution First Appeal has been filed by the appellants -objectors namely, Mag Raj S/o. Devaji Mali and Mitha Lal S/o. Devaji Mali, against rejection of their application (objections) by the learned Executing Court, as aforesaid. The appellants -objectors herein are, admittedly, the younger brothers of judgment -debtor Chunni Lal S/o. Devaji Mali, who was the defendant before the learned Trial Court and against whom, the decree for specific performance of the contract was passed. The learned Executing Court below has rejected the objections of the appellants filed under Rule 21 Rule 97 read with Section 151 of the Code of Civil Procedure in the following manner: -
(3.) THE learned counsel Mr. Girish Sankhla appearing on behalf of the appellants -objectors has relied upon a decision of the co -ordinate bench of this Court in the case of Lalita Vs. The District Judge & Ors. reported in, 2006 (4) RDD 2033 (Raj.) and submitted that the objections filed by way of application by the present -appellants -objectors were required to be decided as fresh suit as per the provisions contained in Rule 101 to Order 21 of the Code of Civil Procedure but the learned Court below has failed to decide the said objections in accordance with provisions of Rule 101 of the Code of Civil Procedure and, therefore, the impugned order dated 07.04.2011 deserves to be quashed and set aside. The learned counsel has relied upon an agreement dated 24.03.1989 purportedly executed between the present judgment -debtor Chunni Lal and the two present objectors namely, Mag Raj and Mitha Lal on a stamp paper of Rs. 2/ - only purportedly agreeing to sell the property in question in the year 1989 on 24.03.1989. The learned counsel further submitted that the said agreement dated 24.03.1989 was produced before the learned Executing Court along with the prescribed Form No. 3 but the learned Executing Court below has failed to take note of the same and has rejected the objections application by the present appellants -objectors under Order -21 Rule 97 CPC. The learned counsel also submitted that the objectors are in possession of the property in question for last 30 years and, therefore, they could not be dispossessed under a collusive decree obtained by the decree -holder Jawan Mal by entering into a compromise with their brother, judgment -debtor Chunni Lal.;