HIRABHAI MOHANBHAI PATEL Vs. RAMDAS MAGANBHAI PATEL

JUDGEMENT

(1.) THIS Civil Revision Application under Sec.115 of the Code of Civil Procedure challenges order dated 28-10-2010 passed in Regular Civil Appeal No.218 of 2006 below Ex.7 by the learned 2nd Additional District Judge, Bharuch, as also common order dated 15-7-2006 passed by learned 6th Additional Senior Civil Judge, Bharuch, in Misc. Execution Application No.24 of 1978 and Misc. Execution Application No. 8 of 1982.

(2.) FACTS as arising from the present petition in short are that a decree was passed in favour of present respondent No.1-original plaintiff-Ramdas Manganbhai Patel in Regular Civil Suit No.2 of 1968 in respect of land bearing Survey No.361 admeasuring 20 acres 13 gunthas situated in Village Samsod, District Bharuch. For getting the decretal amount, he filed Special Execution Application No.14 of 1969. Pursuant thereto, auction was held and respondent No.1 purchased the land for Rs.23,000/-. The respondent No.1 did not pay 1/4th amount as per the rules. Auction was again held for Survey No.361 of said land in which respondent No.1 purchased the land for Rs.11,151/-. However, sale deed was executed in respect of land bearing Survey No.371 which was corrected vide order dated 27-1-1978 in response to his application and land bearing Survey No.361 was registered in his favour. He filed Misc. Execution Application No.24 of 1978 for getting possession under Order XXI Rule 95 of Civil Procedure Code. Misc. Execution Application No.8 of 1982 was, however, filed by the applicant, his father(died during the pendency) and respondent No.2 under Order XXI Rule 95 of the Code of Civil Procedure. Both these applications were heard together and were decided by common judgment dated 29-10-1993 by the learned 3rd Joint Civil Judge(Sr.Div.), Bharuch, whereby Misc. Execution Application No.24 of 1978 was allowed and respondent No.1-Ramdas Maganbhai Patel was ordered to hold possession of the darkhast land. Misc. Execution Application No. 8 of 1982 was, however, rejected. Being aggrieved by the said judgment and order, the applicant filed Civil Revision Application No.1581 of 1998 before this Court. Since the Executing Court did not deal with all the contentions properly including the contention of about the purchaser being prohibited from participating at the public auction on the ground that he was an employee of the Government/Panchayat, matter was remanded to the Executing Court vide order dated 8-12-2000 to decide as many as six issues framed by the Court and the applicant was permitted to agitate all the contentions raised in the revision before the Executing Court. Thereafter, both these Execution Applications were decided by common judgment dated 15-7-2006 by the learned 6th Additional Senior Civil Judge, Bharuch, whereby Misc. Execution Application No.24 of 1978 was allowed and respondent No.1 was ordered to hold possession of the darkhast land. Misc. Execution Application No. 8 of 1982 was, however, rejected. Being aggrieved and dissatisfied with the said order, the present applicant filed Regular Civil Misc. Appeal No.218 of 2006 before the District & Sessions Court, Bharuch. The present respondent No.1 submitted an application on 8-1-2007 raising objection that said appeal was not maintainable against the said order dated 15-7-2006 but only revision application would be maintainable before the High Court. Learned 2nd Additional District Judge, Bharuch, vide order dated 28-10-2010, allowed said application Ex.7. Being aggrieved by the said order, present revision is preferred by by the present applicant.

(3.) IT is submitted by party-in-person that impugned order is against the settled principle of law. It is further submitted that although the High Court in revision remanded the matter back to the Executing Court to decide six issues, same were not considered and rejected the Misc. Execution Application No.8 of 1982. According to him, the Executing Court has not considered the aspects that possession is in favour of the applicant and name of the respondent was not shown in the revenue record. It is further submitted that in earlier auction, the respondent No.1 had purchased the land bearing Survey No.361, however, he did not pay the auction amount and in the second auction, he had purchased the land for Rs.11,000/- and another auction for Survey No.371 took place in which also, the respondent No.1 had given the bid for Rs.11,000/- and there was manipulation in the sale deed in survey numbers and hence, the said sale deed has been forged with a mala fide intention to deprive the applicant of his ownership over the property. It is further submitted that the respondent No.1 is a Government servant and he did not take permission to participate in the bid from the Court or from the Collector and hence, he has no right to purchase the said land in auction and, therefore, the entire auction proceedings are vitiated. It is, therefore, requested that the present revision may be allowed by quashing and setting aside the impugned order.