TARA CHAND Vs. MAHENDRA KUMAR

JUDGEMENT

(1.) Disdained by the impugned order dated 14th of January 2013 passed by the Addl. District Judge No. 2, Udaipur in Case No. 30/2012, the appellants have laid this Execution First Appeal under Order 21 Rule 103 Code of Civil Procedure 1908 (for short, 'the CPC'). Succinctly stated, the facts of the case are that the first respondent decree-holder filed a suit for specific performance of contract against Late Shri Onkar Shanker Paneri on the strength of an agreement to sale dated 27th of April 1994 for House No. 24 Solankiyo ki Ghati, Bhatiyani Chohata, Udaipur. As per recital in the agreement to sale, Late Shri Onkar Shanker agreed to sale the said house to the respondent decree-holder for a sum of Rs. 1,90,000/- only. The suit was contested by Late Shri Onkar Shanker and finally the suit was decreed vide judgment and decree dated 11th August 2000 by the Addl. District Judge No. 2, Udaipur. Being aggrieved from the judgment and decree passed by the learned trial Court, Mr. Onkar Shanker, grandfather of appellant No. 1 to 3 and father-in-law of the 4th appellant, preferred a civil regular first appeal before this Court and same was registered as S.B. Civil First Appeal No. 170 of 2000. The said first appeal was ultimately dismissed by this Court vide its judgment dated 10th October 2003. After dismissal of the first appeal, the first respondent decree-holder launched execution proceedings and Execution Case No. 21 of 2003 was registered. During the pendency of the execution proceedings, the appellant submitted their objections under Order 21 Rule 97-2001 CPC resisting the execution of the decree. Opposing the objections of the appellants, the first respondent decree-holder submitted an application under Order 7 Rule 11 read with Sec. 151 CPC. The learned Court below heard arguments on the application submitted by the respondent decree-holder as well as the objections filed on behalf of the appellants simultaneously and vide impugned order rejected the objections submitted on behalf of the appellants. Although the application submitted on behalf of first respondent decree-holder was captioned as an application under Order 7 Rule 11 read with Sec. 151 CPC but the learned executing Court while construing the same as an application under Sec. 151 CPC. allowed it for consulting the objections submitted on behalf of the appellants.

(2.) The learned counsel appearing for the appellants Mr. Usman Ghani made sincere endeavour to invite my attention towards the provisions of Order 21 Rule 97 CPC and submitted that the appellants are well within their rights to resist the execution of the decree for possession of disputed immovable property. The provisions contained in Rule 97 of Order 21 CPC are reproduced as infra:

(3.) Buttressing his submissions on the strength of aforementioned Rule 97 of Order 21 CPC, learned counsel Mr. Usman Ghani has contended that being legal representatives of the original judgment-debtor Mr. Onkar Shanker, the appellants are well within their rights to resist the execution of the decree and to obstruct the first respondent decree-holder from obtaining possession of the disputed property.