(1.) This civil revision application by the decree-holder is directed against the order dated 17.1.2004, passed by the learned execution court in Execution Case no.41 of 1970 (Ram Harsh Chaturbedi v. Amzad Ali), whereby the judgment-debtor (opposite party herein), has been directed to deposit the decretal amount.
(2.) A brief statement of facts as per the version of the decree-holder may be indicated. The petitioner herein had instituted Money Suit no.36/70, praying for a money decree against the opposite party herein. The suit was decreed by judgment dated 11.8.70. The decree-holder promptly levied execution by filing the aforesaid Execution Case no.41/70. The judgment-debtor failed to deposit the decretal amount, whereafter the decree-holder filed an application on 9.9.70, under Order 21, Rule 53, Code of Civil Procedure, for attachment and sale of immoveable property for satisfaction of the decree. The learned execution court passed order on 16.2.72, whereby it ordered for issuance for sale proclamation. The auction sale took place and attained finality. The application was ultimately allowed and the order for attachment of immoveable property was passed. The decree-holder did not challenge the same as a result of which the order for attachment of property attained finality. 2.1 The petitioner...s further case is that the judgment-debtor thereafter filed a miscellaneous case before the learned execution court praying therein that delivery of possession may be set aside. The same was allowed by the learned execution court by his order dated 23.2.80, whereby delivery of possession was nullified, which was challenged by the decree-holder by preferring misc. appeal which was allowed by the learned Subordinate Judge on 1.4.1985, and the order of the learned execution court was set aside. The judgment-debtor challenged the same by preferring Civil Revision no.913/85, which was allowed by this Court by order dated 21.7.87 (Annexure 1), whereby it was held that an appeal does not lie against an order under section 47 of the Code and, therefore, the order dated 1.4.85 was set aside, and the learned execution court was directed to proceed with the question of delivery of possession in accordance with law. This is followed by the impugned order, whereby the judgment-debtor has been directed to deposit the decretal amount.
(3.) While assailing the validity of the impugned order, learned counsel for the decree-holder submits that the order of the learned execution court affirming the auction sale had attained finality, the only question which remained was with respect to delivery of possession. There was, therefore, no scope for direction to deposit the decretal amount instead. The impugned order in substance ignores the order of the learned execution court, and also is in violation of the order dated 21.7.87, passed by this Court in Civil Revision no.913/85.