RAMCHAND BHAGCHAND DHARAMFUND TRUST Vs. MOHANLAL RAMPRASAD JAISWAL

JUDGEMENT

(1.) RULE. Rule returnable forthwith. The petition is heard finally with the consent of the learned counsel for the parties.

(2.) BY this petition, the petitioner impugns the order passed by the executing court on 23.3.2006 directing the petitioner to sell the suit property to the respondent after securing the necessary permission from the competent authority. The order further directs the respondent to pay the additional amount of Rs.10000/- to the petitioner towards damages for the occupation and use of the premises.

(3.) SHRI V.R. Mundra, the learned counsel for the petitioner submitted that the executing court was not justified in rejecting the application for possession and instead directing the petitioner to execute the sale deed in favour of the respondent in the peculiar circumstances of the case. The learned counsel for the petitioner submitted that the respondent had not paid the balance amount inspite of the issuance of notice dated 22.5.1998 and had also not deposited the amount before the court for a period of almost five years after the institution of the execution proceedings. The learned counsel for the petitioner submitted that since the respondent had filed an application for recall of the compromise decree on the ground that it was obtained by fraud, the respondent lost his right to get the compromise decree executed, specially when he had not deposited the amount in the executing court for a period of almost five years. The learned counsel for the petitioner submitted that the reply, additional reply and the application for recall of compromise decree clearly show that the respondent came with false plea merely with a view to delay the payment of Rs.41000/- to the petitioner and remain in possession of the property. In the facts and circumstances of the case, according to the learned counsel for the petitioner the executing court was not justified in directing the petitioner to execute the sale deed in favour of the respondent by holding that the petitioner was at fault in view of the fact that it had not secured the permission of the Charity Commissioner till 5.12.1997 and had not produced the documents of title in the court within a reasonable time.