DEVENDER KUMAR Vs. BISHNO DEVI AND ORS.

JUDGEMENT

(1.) BY way of present petition under Article 227 of the Constitution of India, the petitioner has assailed an order dated 20th March, 2008 passed by learned Civil Judge (Executing Court) whereby the learned Civil Judge directed the petitioner to refund an amount of Rs. 1 lac and the post -dated cheque received in execution of the decree to the objector.

(2.) BRIEF facts relevant for the purpose of deciding this petition are that a decree under Order XXXVII CPC was passed against one Yogesh Kumar (son of the objector Smt. Bishno Devi and brother of Rajesh Kumar Maurya). The decree holder sought execution of decree against Yogesh Kumar at the residential address where Smt. Bishno Devi and Shri Rajesh Kumar (objectors) used to live. The Bailiff of the Court along with police help had gone to the house and as per Bailiff report a sum of Rs. 50,000/ - in cash was paid to decree holder along with post -dated cheque of rest of the decretal amount by the objectors. The objectors later on filed objections that the decree was against Shri Yogesh Kumar and it was wrongly executed against the objectors. Shri Yogesh Kumar was missing from the house even at the time of filing of the suit. The decree was wrongly executed against the objectors. An application was also made for return of not only the cash and cheques received through Bailiff but another amount of Rs. 50,000/ - on the ground that decree holder again came back with musclemen and took another sum of Rs. 50,000/ - and executed a receipt.

(3.) THE executing court while upholding the objections that decree was not executable against objectors, directed the petitioner to refund an amount of Rs. 1 lac and post -dated cheque. The present petition was admitted only on the point whether the order of directing refund of Rs. 1 lac instead of Rs. 50,000/ - was within the jurisdiction of the executing court or not.