RAJ PAL & ANR Vs. DEEPAK MAKWANA

JUDGEMENT

(1.) Appellant-Judgment Debtor's objections under Order 21 Rule 58 r/w Section 47 of CPC have been dismissed by Executing Court and the dismissal of the objections has been upheld by Appellate Court vide impugned order of 25th January, 2016.

(2.) It is urged that the First Appellate Court in the impugned order has erroneously held that a document filed by a party, though un-exhibited/ de-exhibited can be relied upon for collateral purposes. To hold so, reliance has been placed by the First Appellate Court on a decision of this Court in Mangal Singh Vs. Tek Ram, 1975 AIR(Del) 267 . It is pointed out by learned Senior Counsel for appellants that in Mangal Singh , it was an un-exhibited document whereas de-exhibited document cannot be relied upon. Reliance is also placed by learned senior counsel for appellants upon a decision of this Court in RSA No. 130/2007, titled as Sarla Devi Vs. Budhan, rendered on 28th April, 2011 to point out that upon de-exhibition of a document, it no longer remains on record. Thus, it is submitted on behalf of appellants that the impugned order as well as order of the Executing Court deserves to be set aside and an opportunity ought to be granted to appellants to lead evidence to show that the area of Shop No.33 is 5'X4".

(3.) Upon hearing and on perusal of impugned order, Executing Court's order and the material on record, I find that impugned order notes that the Rent Agreement is a de-exhibited document but relies upon Mangal Singh , which pertains to an un-exhibited document. This Court in a later decision in Sarla Devi , has reiterated that a de-exhibited document clearly means that the said document does not exist on the record of the case. Both the courts below have erred in relying upon a deexhibited document to dismiss appellants' objection. Copy of the Municipal Certified Plan of the property No.29 & 33 placed on record in the suit proceedings could not have been relied upon as its perusal shows that it relates to composite numbers 29 to 33 and so, the dimension of different shops and rooms, as given in this Municipal Plan, does not clearly indicate to which municipal number the room or the shop relates to.