GANGA RAM Vs. PRABHU LAL

JUDGEMENT

(1.) HEARD learned counsel for the petitioner. The present revision petition arises from the order dated 18.04.2013 passed by the executing Court, whereby, the application filed by the petitioner -judgment debtor for dismissal of the execution proceedings as time barred has been rejected and the Court has straightaway ordered for issuing warrant under Order XXI, Rule 35 CPC.

(2.) THE case of the petitioner is that the so called offending construction was existing at the time of passing of the decree on 02.12.1985, which has been noticed at page 2 of the judgment and a specific decree in the following terms was passed: -

(3.) FROM the perusal of the order impugned, it is apparent that the trial Court has rejected the application for dismissing the execution proceedings and has thereafter straightaway ordered for issuance of warrant under Order XXI, Rule 35 CPC, which procedure is apparently faulty. The trial Court was required to hold an inquiry regarding the existence of construction at the time of passing of the decree or as to whether any construction has taken place subsequent to the passing of the decree, no such consideration appears to have been made by the executing Court.