PATEL WINES Vs. NATPUR CO-OPERATIVE BANK LTD

JUDGEMENT

(1.) By filing this revision application under Section 115 of the Code of Civil Procedure, the petitioner who is a third party in Special Darkhast No.119 of 1989 has prayed for quashing and setting aside the order passed by the learned Civil Judge (Senior Division), Nadiad dated 7.2.1998passed below Exhibit 30. Respondent No.1 cooperative bank is the decree holder and a money decree was passed against respondent Nos.2 to 6 herein. The decree-holder thereafter tried to execute the said decree by attaching the immovable properties of the judgment debtor. During the pendency of Execution Application No.119 of 1989 the present petitioner gave an application at Exhibit 30 as a third party. The aforesaid third party submitted that he is a sitting tenant of the premises in question and, therefore, the property in question may not be sold by way of public auction. The Executing Court by the impugned order rejected the said objections of the third party. The Executing Court found that the petitioner " third party was inducted subsequently in the rented premises to defeat the right of the decree-holder. Against the aforesaid order rejecting the application of the petitioner at Exhibit 30, the petitioner has filed this revision application under Section 115 of the Civil Procedure Code.

(2.) Learned advocate, Mr Shital Patel for the petitioner submitted that before even the decree was passed, the petitioner was occupying the rented premises and, therefore, the property should not be allowed to put to sale by way of public auction. Learned advocate Mr H.M. Parikh who is appearing for the decree holder " bank submitted that the application of the petitioner before the Executing Court was premature as the petitioner cannot insist that the property of the judgment debtor should not be put to public auction. He has submitted that in view of the provision of Order 21 Rules 95 and 96 of the Civil Procedure Code such application was not maintainable before the property was actually put to sale.

(3.) I have heard both the learned advocates for the parties. In my view, the application of the petitioner was clearly premature. In this connection, reference is required to be made to Order XXI Rule 95 and 96 of the Civil Procedure Code, which reads as under:-