SHANKAR @ GAURISHANKAR Vs. SADHANA NAYAK

JUDGEMENT

(1.) PROCEEDINGS were initiated in Execution Case No. 4 of 2007, before the Court of Civil Judge (Jr. Div.), Jhansi for executing a decree passed on 18.09.2003. An objection in the execution was filed by the petitioners, raising various legal and factual issues, to which a rejoinder affidavit was also filed. Subsequently, an application was filed by the decree holder on 10.12.2013, stating that the decree, which is sought to be executed arose out of two suits being Suits No. 212 of 1992 and 216 of 1992, which had been consolidated and decided by the Civil Judge (Sr. Div.), Jhansi on 25.05.2000, which was reversed in appeal vide decree dated 18.09.2003. It was therefore, contended that the execution could proceed only before the Civil Judge (Sr. Div.), Jhansi before whom the suits were filed and the Civil Judge (Jr. div.), Jhansi had no jurisdiction to execute the decree. Consequently, a prayer was made that the execution application be returned by the Court of Civil Judge (Jr. Div.), Jhansi for presentation before the appropriate Court.

(2.) THE executing court rejected the execution application by observing that a fresh execution can always be filed before the Civil Judge (Sr. Div.), Jhansi and the proceedings of execution cannot be returned for presentation before the Competent Court. Against this order dated 18.12.2013, a revision was filed before the District Judge, Jhansi, who has allowed the revision and the Court concerned was directed to return the execution proceedings to the decree holder, for presentation to the Competent Court having jurisdiction, with notice to both the parties for appearance before the Court. Aggrieved by the said order, the judgement debtor has filed the present writ petition.

(3.) LEARNED counsel for the petitioners submits that the proceedings of execution are not proceeding within the meaning of Section 141 of Code of Civil Procedure. For the said proposition, learned counsel has relied upon a Division Bench judgement of the Madras High Court in the case of Periyakarupa thevar Vs. Vellai Alias Ocha Thevar, 1962 AIR(Mad) 338. Learned counsel further submits that the order passed by the trial court was an interlocutory order and the revision itself was not maintainable against it. For the said proposition reliance was placed upon a Division Bench judgement of this Court in the case of Ram Dhani and others Vs. Raja Ram and others, 2011 87 AllLR 66 as well as the judgement of this Court dated 18.09.2002 passed in the case of Hari Bahadur Lakhtakia Vs. District Judge, Allahabad as well as a Division Bench judgement of this Court in the case of U.P. Financial Corporation Vs. District Judge, Bareilly, 2001 3 AWC 2052 and the judgement of this Court dated 02.11.2006 passed in Zila Panchayat, Deoria through its Chairman Vs. Jagriti Seva Sansthan through its Secretary, Smt. Vijay Laxmi Rai. Lastly, it is submitted that since no issue of limitation was involved, therefore, the observation of the Trial Court that a fresh execution could be filed before the Civil Judge (Sr. Div.), Jhansi, did not suffer from any error in law and consequently, no interference was required in revision on merits.