MOHD.YAMIN, J. - (1.) THIS is a revision against the order of learned Civil Judge (JD), Jodhpur dated 11.8.98 which he passed in execution case No. 36/96 and dismissed the application of the judgment debtor petitioner under Section 151 CPC.
(2.) I have heard the learned counsel for the parties at length. Respondents were landlord and the petitioner was their tenant. Respondents obtained an ex parte decree of eviction of their shop with godown in which petitioner judgment debtor was tenant. An execution was filed in which possession of the suit shop was taken by the decree holder. Entire goods belonging to tenant judgment debtor lying in the shop were also handed over to decree holders on supurdginama and the same are lying in their custody. The case of the petitioner tenant is that an application to set aside ex parte decree was pending and was fixed for his evidence. He moved an application before the executing court that if the goods are moved to some other place and in case the decree is set aside they will be placed in the shop as the judgment debtor will be entitled for the restoration of the possession. In case the goods are allowed to be taken away the same will be damaged in transit, therefore, it will be in the interest of justice that the goods and other material may be kept in the disputed premises. This application was rejected and the judgment debtor was directed to remove the goods within one week otherwise the same would be auctioned.
(3.) LEARNED counsel for the respondents submitted that the petitioner has based his application on wrong facts because the shop when vacated in execution of decree, was let out to another person and was not lying vacant. He also submitted that the petitioner had moved this application before the trial court to grant him mercy. He submitted that during the proceedings of execution when the notices under Order 21 Rule 66 were sent and judgment debtor appeared, it was ordered that the goods may be returned to him. On 1.10.97 he moved an application that some time may be given to him. Time was granted but even then he did not move the goods. Then he again applied to give him time on 20.2.98. On 6.3.98 his application to grant him time was rejected and then he submitted this application that the goods may be put in the shop. He also submitted that such an order could not be given in the execution that the goods may be placed in the shop because the decree has been executed and because the suit shop has been let out to another person and was not in possession of the decree holder respondents. According to him in any case the petitioner would not be entitled for such a relief under Section 151 of CPC only because an application under Order 9 Rule 13 CPC is pending to set aside the ex parte decree.;