AKHTARBE Vs. MADINABI

JUDGEMENT

(1.) The respondents have been duly served with the notice issued by this Court. They have however not chosen to contest the writ petition. Accordingly, I have heard the learned counsel for the petitioner, by issuing Rule making the same returnable forthwith.

(2.) The petitioner - Aktharbe is the original plaintiff who had filed a suit being R.C.S.No.37/1968 for partition and separate possession of her share in the property left by her father. The trial Court by its judgment dated 30.09.1975 decreed the said suit and held the plaintiff to be entitled to land admeasuring 4.55 acres from Khasra No.36/1. That decree has attained finality. The original plaintiff then initiated execution proceedings. Since the decree in question was in relation to agricultural land, the precept was sent to the Collector for having the decree executed. On 17.02.2001 the Executing Court disposed of the execution proceedings on the ground that as the precept had been sent to the Collector, it was not necessary to keep the said proceedings pending. The Collector and the sub- ordinate Authorities could not execute the said decree despite various steps being taken. The decree holder therefore sought restoration of the execution proceedings to enable that decree to be executed. As the said application was filed in the year 2013, a separate application for condonation of delay was also filed. The respondents did not file their say to that application. The Executing Court however by order dated 05.04.2014 rejected that application. Being aggrieved, the present writ petition has been filed.

(3.) Shri D.V.Mahajan, learned counsel for the petitioner submitted that though the decree has been passed in favour of the original plaintiff, said decree after being sent under Section 54 of the Code of Civil Procedure, 1908 ( for short, 'the Code') to the Collector has not been executed. According to him, in view of subsequent transactions that have been taken place with regard to that land, the Revenue Authorities have refused to put the decree holder in possession. It was on this count that the petitioner had sought restoration of the execution proceedings. The prayer for condonation of delay was not opposed by the judgment debtors and hence the Executing Court ought to have condoned the delay. Failure on the part of the Executing Court in condoning the delay has resulted in grave injustice. As stated above, the respondents have not chosen to contest writ petition.