CHAMRU Vs. PHOOL KUNWARI & ORS

JUDGEMENT

(1.) This Civil Revision has been filed under Section 115 of Civil Procedure Code being aggrieved by the order dated 9.12.2014 passed by the 1st Additional District Judge Seoni, Distt-Seoni in Execution Case No.3A/1992, whereby the learned Executing Court has directed the applicant/decree holder to deposit the remaining amount Rs.35,379/- in CCD Account of the Court for making payment to the judgment debtor, so that Court may proceed further for execution of the sale deed in favour for the applicant/decree holder.

(2.) Facts of the case are that the applicant filed a suit for specific performance of sale agreement dated 10.9.1990 with regard to Survey No.71 area 2.67 acre situated at R.N. Mandal-1 Tehsil and District Seoni. The learned trial Court found that the husband of the respondent No.1 and father of respondent Nos. 2 to 4 late Shri Mahadev Prasad was entitled to sale only his 1/4 share to the disputed land while the agreement was executed for entire land. The impugned judgment and decree dated 26.10.2007 is under challenge before this Court in FA No.105/2008, but the applicant has filed execution proceedings before the learned trial Court for the execution of judgment and decree dated 26.10.20017. It has been directed by the learned trial Court vide order dated 9.12.2014 to deposit the remaining amount Rs.35,379/- in the CCD Account of the Court as per the terms of the judgment and decree dated 26.10.2007. The applicant is entitled to get only 1/4 part of the disputed land, therefore, the initial consideration of the 1/4 part of the property only Rs.11,348/- is payable. As a sum Rs.10,011/- has already been paid by the applicant to late Mahadev Prasad at the time of agreement, Rs.1337/- is payable to the respondents, hence the learned trial Court has wrongly directed the applicant to deposit the full amount vide order dated 9.12.2014. The applicant preferred a writ petition under Article 227 of the Constitution of India. Writ Petition No.20184/14 has been dismissed on 4.11.2015 with liberty to file a Civil Revision, therefore, the applicant has prayed to modify the impugned order dated 9.12.2014 passed by the Additional District Judge Seoni in Execution Case No.3A/1992.

(3.) Reliance has been placed on the case of Shivkali Bai and Ors. Vs. Meera Devi and Ors., 1992 ILR(MP) 26, wherein it has been held that "defendants No. 1 and 2 had only 1/3 share in property and sale in plaintiff's favour was valid only to extent of 1/3 share. Thus in absence of any evidence of marekt value, sum actually paid was taken to be proper value. Hence defendant No.3 could not be expected to pay for her own property. She needed only pay proportionate price for property over which she had right to pre-emption."