RASHTRA UNNATI VIDYALAYA Vs. SH NATHMAL CHANDOK

JUDGEMENT

(1.) Heard Mr. Prakash Tatia, the learned counsel for the appellant and Mr. R.R. Nagori, learned counsel for the respondent.

(2.) This appeal arises out of the money suit filed in the year 1957 and decreed in the year 1960. In execution, the subject property of the judgment debtor was attached on 21.2.1970 and sold to respondent Nathmal in auction for a sum of Rs. 16,500/-. The respondent purchaser was put in possession of the subject property on 28.7.1977 by the order of the executing Court dated 25.7.1977. The appellant Rashtra Unnati Vidhyalaya claiming itself to be an educational institution filed an application under Section 151, Order 21 Rule 99 and 100 C.P.C. for restoration of the possession on the ground that it was inducted as a tenant in the suit premises in July, 1977. The learned District Judge, Bikaner by order dated 10.8.1977 rejected the application having found that on applicant's own saying, its induction was after the attachment of the property and the lease being also a transfer, the delivery of the property was void by virtue of Section 64 C.P.C.

(3.) The appellant preferred an Execution First Appeal against the order of the learned District Judge, Bikaner dated 10.8.1977. Unfortunately, the appeal was dismissed for want of prosecution by the learned Chief Justice sitting singly on 13.11.1986. The restoration application was also rejected by order dated 10.12.1986. The appellant preferred a Special Appeal before the Division Bench which was dismissed by order dated 15.7.1987. The appellant filed a Special Leave to Appeal before the Apex Court which was registered as S.L.P. (Civil) No. 1237/87. It was avered in the affidavit of the learned counsel filed before the Supreme Court that his father had suffered a heart attack and on account of his serious illness, he could not attend the Court for a period of one month. The apex Court observed that there was no reason as to why the affidavit filed by a respected member of the Jodhpur Bar should not have been acted upon. Accordingly, the Apex Court by order dated 30th September, 1998 set-aside the judgment of the High Court on application for restoration of appeal under Order 41 Rule 19 C.P.C. The application for restoration was allowed. The Court directed the Division Bench to proceed with the hearing of the appeal on merit after notice to the parties. The matter came up before us on 29.5.2000. In view of the order passed on 29th May, 2000, the main Execution First Appeal filed before the Single Bench is taken up for hearing.