PRABHAKAR VYAS Vs. VISHWA NATH VYAS

JUDGEMENT

(1.) With consent of the parties, the matter is heard finally.

(2.) Facts giving rise to filing of the writ petition briefly stated are that the original plaintiff Mr. Ramchand Vyas had instituted a suit for partition. The claim in the suit was based on succession. The suit was decreed in favour of the plaintiff and a preliminary decree was drawn to the effect that plaintiff and judgment debtors have one -third share each in the suit house. The aforesaid decree attained finality. Thereafter, in the final decree proceeding, a Commissioner was appointed by the executing Court. The Commissioner upon survey of the property in dispute, submitted a report that no effective partition can be carried out in pursuance of the preliminary decree. The trial Court accordingly by an order dated t5.1.2009 inter -alia held that no partition can take place. The trial Court held that the property be put to public auction. Accordingly, the final decree was prepared on 5.1.2009. The aforesaid decree was affirmed by the first appellate Court as well as by this Court in Second Appeal.

(3.) After the determination of the rights of the parties, the petitioner/decree holder No.2 purchased the share of all the co -decree holders through registered sale deeds and in addition, the petitioner also purchased the share of the judgment debtor/ respondent No.2. Since an order for public auction was already passed by the trial Court, therefore, the petitioner prior to proceeding for auction, filed an application under Section 47 as well as under Order 21 Rule 84(2) read with Section 151 of the Code of Civil Procedure seeking exemption from payment of the amount to the extent of two -third share. The executing Court vide order dated 5.5.2014 rejected the aforesaid application. In the aforesaid factual background, the petitioner has approached this Court.