MURLIDHAR Vs. AMBERSING

JUDGEMENT

(1.) By this writ petition, the petitioner seeks quashing and setting aside the order dated 24.09.1999 passed by the learned Civil Judge, Junior Division, Bhusawal, below Exh.41 and 72 in Regular Darkhast No. 4 of 1989.

(2.) Brief facts giving rise to the present writ petition are as follows:-

(3.) Learned counsel for the petitioner submits that by filing an application Exh.41, the petitioner has prayed for issuance of possession warrant in view of execution of registered sale deed through the Court Commissioner in favour of the petitioner. Learned counsel submits that the present respondents-judgment debtors in the meantime had instituted the Regular Civil Suit No. 132 of 1994 for setting aside the judgment and decree passed in Regular Civil Suit No. 137 of 1978 and also filed an application for interim relief to protect their possession. However, the said application came to be rejected and the order was also confirmed by the learned District Judge in Misc. Civil Appeal No. 44 of 1997. Learned counsel submits that the time was not essence of the order passed by the trial court while passing the decree and it is apparent from the fact that when the application under Section 148 of Civil Procedure Code was filed, the amount was accepted by the executing court. Furthermore, the respondents-judgment debtors have not raised objection at any point of time in pursuance of acceptance of the said amount, though notices were issued to the respondents-judgment debtors to submit their say under Order XXI Rule 22 of C.P.C. On 18.09.1989, the respondents-judgment debtors though received notice of the Court Commissioner did not object to the execution of decree by executing the sale deed. Even after execution of sale deed through the Court Commissioner, the sale deed was registered with the office of Sub Registrar, Bhusawal and compliance report was submitted by the Court Commissioner to the Court. Learned counsel submits that later on by filing an application Exh.72 a feeble attempt was made to raise objection with regard to the exparte order and the right of the minors to be represented by the guardian.