SANJEEV PRAKASH SHARMA,J. - (1.) Learned Senior counsel appearing for the appellant submits that this Court earlier in S.B. Execution First Appeal No. 02/2016 dated 22.03.2017 set aside the earlier order passed by the executing court dated 09.02.2016, whereby the objections raised by the appellant were rejected and further directed the executing court to provide reasonable and short opportunity to both the sides for producing the documents upon which they want to rely and to decide the application/objections afresh. It is submitted that after the aforesaid order, the appellant again submitted a detailed application alongwith the documents and also moved an application under Section 151 CPC seeking an interim order. However, while deciding the application under Section 151 CPC, the executing court again rejected the objections without giving any opportunity to the appellant to prove his case. The original documents which the appellant would have exhibited in terms of the objections raised under Order 21 Rule 97 CPC were not allowed to be exhibited and merely on the basis of the application which has been filed alongwith the xerox copies of the documents, the proceedings were closed and the objections were rejected. Learned Senior Counsel further submits that before the executing court, the respondent-Rajasthan Board of Muslim Waqf has not even produced the original decree passed in their favour dated 30.01.1971 which was passed by this Court in D.B. Civil Regular First Appeal No.32/1958. It is submitted that the application for seeking execution mentions different boundaries other than what was mentioned in the decree dated 30.01.1971. Learned counsel has passed on the certified copy of the original judgment and decree passed by this Court to submit that the original boundaries mentioned in the decree also mention that the appellant's property is on the west side of the Kabristan, which was required to be kept intact in the decree. Learned counsel submits that in the application moved before the concerned executing court, the boundaries which have been mentioned in the application are different. He submits that the order passed by the learned executing court, therefore, does not take into consideration the submissions as raised by the appellant and as directed by this Court earlier.
(2.) Per contra, learned counsel appearing for Rajasthan Board of Muslim Waqf submits that the execution proceedings are pending since 1982 and relate to a decree passed with regard to properties of the Waqf Board. He also submits that the earlier execution proceedings has also been filed against one Daya Ram in relation to a decree passed against him. Learned counsel submits that the property has been earmarked in a map which has been duly certified by the State Government, Urban Development and Housing Department, and by the Urban Improvement Trust, Jodhpur and marked as property of the Waqf Board. The judgment and decree could not be executed because of frivolous objections being raised from time to time. Learned counsel further submits that the present objectors are actually raising objections at the behest of one Daya Ram who earlier lost in the proceedings all the way upto this High Court in relation to the execution of the decree passed against him and in favour of Waqf Board. It is submitted that before the executing Court, the objectors have stated that they have no interest in common with the interest of Daya Ram. However, in separate proceedings it has been stated by the objector-appellant that he had handed over his part of property to Daya Ram. Thus, contrary stand has been taken in different proceedings by the appellant. Learned counsel has also asked this Court to go through the certified copy of the suit filed by the appellant separately wherein such stand has been taken. Learned counsel has taken this Court to various orders passed by this Court in relation to the question regarding the earmarking of the land and submits that earlier in proceedings relating to Daya Ram, the Sale Amin had given a report on the warrant of possession that the present boundaries were not matching with the boundaries of the land indicated in the decree dated 19.04.1961. The High Court after having gone through the decree held that the property as mentioned in the decree dated 19.04.1961 was required to be executed as per the decree and the objections raised by the objector therein were rejected. It was also held as under :- "So far as the amendment in the boundaries of the decree is concerned, admittedly the suit was filed in the year 1957, the decree was passed in the year 1961 and almost 60 years have passed since the suit was instituted and, therefore, there is bound to be change in the boundaries as many new constructions etc. might have cropped up now, where there were no such constructions and many existing constructions might have been altered and, therefore, the Sale Amin found the boundaries indicated in the warrant of possession as not matching with the present boundaries and, therefore, the trial court was justified in ordering bringing the warrant of possession in sync with the present boundaries and no exception can be taken to the said order of the executing court."? Learned counsel further submits that the present appellant has remain silent with regard to the decree and has never raised any objections earlier. The property is in the main market of Jodhpur and it was very well known to the appellant about the decree having been passed in favour of Waqf Board. It is submitted that the decree has been passed in the representative suit and a presumption has to be drawn that it was in knowledge of the appellant with regard to the passing of the judgment and decree. Therefore, he submits that no interference is called for in the order passed by the executing court. Learned counsel for the respondent-Rajasthan Board of Muslim Waqf submits that the judgment of Apex Court was relied upon by the trial court for not allowing the appellant to lead the evidence in this regard. He has taken this Court to Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another reported in AIR 1998 Supreme Court 1754.
(3.) Admit.;