PADAM CHAND Vs. RAM SINGH (DECEASED)

JUDGEMENT

(1.) Being aggrieved and dissatisfied with the order dated 15.11.2018, passed by the learned Civil Judge (Junior Division), Kandaghat, District Solan Himachal Pradesh, in Execution No. 30-1 of 2018, whereby application under Order 21 Rule 58 read with S. 151 CPC, having been filed by the petitioner-revisionist, came to be dismissed, petitioner has approached this court in the instant proceedings filed under S.115 CPC, praying therein to set aside the impugned order and allow the application in question.

(2.) Having heard the learned counsel for the petitionerrevisionist and perused matterial available on record vis-visreasoning assigned by the learned Court below, while passing impugned order, this court is not persuaded to agree with Mr. Sanjay K. Sharma, learned counsel representing the petitionerrevisionist that the learned executing Court has erred, while passing impugned order, rather, this court finds that, vide impugned order dated 15.11.2018, learned Court below rightly proceeded to issue warrant of possession under the provisions of Order 21 Rule 58 CPC. Order 21 Rule 58 Civil Procedure Code provides that, where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provision, provided that property attached is not already sold or objections or claim, if any, of the applicant is not unnecessarily delayed.

(3.) In the case at hand, petitioner-revisionist, who was not a party to the suit, judgment and decree whereof are sought to be implemented by way of execution, which is subject matter of the present proceedings, filed an application under Order 21 Rule 58 CPC, averring therein that he has filed a Civil Suit for declaration to the effect that the registered gift deed No. 88, dated 25.8.1966 executed by Shri Mansa Ram in favour of the Decree Holder was executed without any right, title or interest and entries in the revenue record were illegally changed from the years 1970-71, from the name of Smt. Parwati, who was actually in possession of the suit property of Shri Ram Singh. The said property was purchased by Sobha Ram and son of one Sh. Sukh Ram, for more than Rs. 1000.00 from Mansa Ram. It is further averred in the application that Sobha Ram was non-occupancy tenant under Mansa Ram, who died leaving behind Parwati as his widow and after the death of Parwati, applicant alongwith one Jash Ram became the owner of the suit land comprised in Khasra No. 590 including the old house situated at Village Katoh, Pargana Wakna. It is also averred in the application that the house constructed over Khasra No. 590 was constructed by Sobha Ram, who was in possession of said house. Revenue entries showing the name of Parwati were continuously shown in the revenue record from 1952-53 till 1956-66, and, after her death, Yashodha, her sister, took over possession of the suit property and the Judgment debtor Leela and Yashodha were living in the said house after the death of Parwati in the year 1992. Petitioner-revisionist further claimed in the aforesaid application that he has filed a Civil Suit against the Decree Holder and judgment debtor, titled Padam Chand and another vs. Ram Singh and another being Civil Suit No. 14-K/1 of 2012, wherein collusive litigation between Ram Singh and Leela Devi has been challenged.