BASUDEO Vs. IVTH ADDITIONAL DISTRICT JUDGE JHANSI

JUDGEMENT

(1.) In the connected second appeal No. 45 of 1994, originally order of stay was granted. But subsequently the same was not extended. Ultimately at the moment no stay order is operating in support of the said second appeal. The execution arising out of the decree which was subject matter of second appeal was sought to be proceeded with by the decree-holder. The judgment-debtor had filed an objection in the said execution proceeding which was rejected by the executing court by order dated 3-4-1995. A revision was then preferred being Civil Revision No. 84 of 1995. The said revision also stood rejected by order dated 29-7-1995. Against the said order the present writ petition No. 21763 of 1995 has been preferred. In the present writ petition an interim order was obtained on 11-8-1995 to the extent that until further orders the petitioners shall not be evicted from the accommodation in dispute. The said interim order has been sought to be affected by means of present application dated 24-8-1996.

(2.) The learned counsel for the respondents vehementally pressed the said application. The learned counsel for the petitioner on the other hand opposed the said application. The hearing of the application for vacating the interim order, in fact, would decide the merit of the writ petition itself. Accordingly, both the learned counsel for the parties addressed the Court on merit of the writ petition itself.

(3.) The learned counsel for the petitioners contend that the revisional Court did not decide the objection on merit. It had only proceeded on the basis that since the second appeal stood dismissed and though restored but there being no interim order there was no bar in proceeding with the execution proceeding. According to the learned counsel for the petitioners, the order passed by the revisional court suffers from failure to exercise the jurisdiction vested in it. In asmuch as the revisional court did not decide the objection raised by the judgment-debtor on its merit. He secondly contends that the executing court also avoided to decide the objection on the ground that the executing court does not have jurisdiction to decide such an objection. On these two grounds he contends that the orders impugned are bad and are liable to be set aside.