UMMED MAL Vs. KUNDANMAL

JUDGEMENT

(1.) This civil execution appeal is against the judgment and order dated February 1, 1975 of learned Additional District Judge, Sirohi, by Ummedmal, judgment- debtor.

(2.) Briefly stated the relevant facts are these. The respondents-decree-holders filed a suit for partition of two shops situated at Sumarpur but it was dismissed by the trial Court. The respondents-decree-holders preferred first appeal, which was also dismissed. However, the second appeal filed on their behalf in this Court was accepted and the suit was decreed. Letters Patent Appeal filed by Ummedmal was dismissed. The respondents-decree-holders filed the execution application on 28-1-1972 in the Court of Addition District Judge, Sirohi. Notices under Order XXI, Rule 22, C. P. C. were issued. The appellant put appearance on 8-4-1972 and was also present on the next date i. e. 9-5-1972. On 8-71972, no instructions were pleaded by the counsel of the judgment-debtor. The Court vide order dated July 7, 1973 held the decree to be capable of execution. During the execution proceedings, a Commissioner was appointed and one shop was allotted to the decree-holders. They also wanted arrears of rent and further mesne profits. The Court determined the arrears of rent and mesne profits and attached the shop, which fell to the share of the judgment-debtor. Notice under Order XXI, Rule 66, C. P. C. was issued. The judgment-debtor appeared and raised the following objections:--

(3.) The Commissioner did not issue any notice to the judgment-debtor and, therefore, the Court was in error in proceeding on the basis of that report. Though, the following specific objections were not taken before the lower Court or in the memo of appeal. But, they were allowed to be raised before me with my permission,--