HANUMAN SAHAI SHARMA Vs. BABU LAL SHARMA

JUDGEMENT

(1.) The instant writ petition has been filed under Article 227 of the Constitution of India against the order dtd. 20/4/2016 passed by Civil Judge (S.D.) and Chief Judicial Magistrate, Jaipur in Case No. 13/2014 whereby an application under Order 21 Rule 29 of the Code of Civil Procedure, filed by the respondent-objector, has been dismissed but while dismissing the said application, the learned trial court allowed the framing of issues and taking the evidence of the respondent-objector on record.

(2.) The relevant facts, necessary for the just and efficacious adjudication of the instant writ petition, are as follows:

(3.) Learned counsel for the petitioner has argued that the impugned order dtd. 20/4/2016, to the extent of allowing for framing of issues and taking evidence on record of the respondent no.1-objector is illegal, erroneous and contrary to the evidence and material available on record. In this regard, learned counsel submitted that the learned executing court cannot exceed its jurisdiction and allow the framing of issues and adducing evidence on the objection application, especially when an application for adducing evidence so put forth by the respondent no.1-objector was dismissed vide order dtd. 24/12/2014 i.e. on the same facts, the respondent no.1 had moved an application on 27/11/2014, which was dismissed by the learned trial court vide order 24/12/2014. Thus, there is no occasion to decide/review the same issue, which has already been adjudicated upon by the learned trial court. Lastly, learned counsel for the petitioner-decree holder argued that execution proceedings under Sec. 47 of the Code of Civil Procedure are summary in nature and have to be given a microscopic angle. Thus, in the facts and circumstances of the case, the learned executing court erred in granting permission for framing of the issues and adducing evidence. In support of his arguments, learned counsel for the petitioner relied upon the dictum of the Apex Court as enunciated in (2001) 6 SCC 534 titled as Dhurandhar Prasad Singh vs. Jai Prakash University & Ors.