SITABAI Vs. MAN SINGH

JUDGEMENT

(1.) Being aggrieved by the order dated 19-2-2011 passed by Civil Judge Class I, Mandleshwar in Civil Ex. Case No. 202-A/97-08, whereby execution filed by the petitioners under Order 21, Rule 11, Civil Procedure Code was dismissed, present petition has been filed.

(2.) Short facts of the case are that execution petition was filed by the petitioners on 5-11-2003 with a prayer to execute the decree, which was passed in compromise in Civil Suit No. 202-A/96. According to said compromise decree respondent was to pay a sum of ? 2,04,000/- to the petitioners on or before 31-12-2000 in two instalments and in turn deceased Chhatarsingh, Kailash and deceased Bhagatsingh predecessor-in-title of petitioners were to execute the sale deed. In the said decree it was also mentioned that in case the respondent fails to pay the amount before the specified date then the respondent shall be further liable to pay a sum of ? 15,000/- per year and the petitioners shall be entitled to get the possession of the suit property. On 5-11-2003 an execution petition was filed by the petitioners, wherein it was alleged that respondent has not paid the amount as per the decree dated 22-4-1999, therefore, petitioners be put into possession. The application was opposed by the respondent alleging that the amount of ? 2,04,000/- was paid on different-different dates. Since there was dispute between the parties relating to payment of ? 61,000/- made on 15-4-2000 and ? 4,000/- on 11-1-2000, therefore, learned executing Court recorded the evidence and upheld the objection raised by the respondent and dismissed the execution petition, against which present petition has been filed.

(3.) Shri B. I. Mehta, learned counsel for petitioners, submit that impugned order is illegal, incorrect and deserves to be set aside. Learned counsel submits that since it was alleged that the receipt dated 15-4-2000 and 11-1-2000 bears the signature of Chhatarsingh, therefore, petitioners be permitted to examine handwriting expert. It is submitted that thrice the application was dismissed. To prove these documents respondent examined himself and also the witnesses of the receipt namely Mansingh, Mohansingh, Shankarsingh and Mohan. It is submitted that none of the witnesses proved the signature of Chhatarsingh, therefore, there was no justification on the part of the learned Court below to prove the documents Ex. P/1 and P/2 before the learned executing Court, which is marked before this Court as Ex. P/11, which bears the signature of Chhatarsingh. It is submitted that learned Court below committed error in exercising powers under section 73 of the Indian Evidence Act in comparing the signature of deceased Chhatarsingh. It is submitted that petition filed by the petitioners be allowed and the impugned order be set aside.