DEEPAK SHARMA Vs. DAUJI SHARMA AND ORS.

JUDGEMENT

(1.) THE present appeal has been filed by the appellant -objector, challenging the order dt. 15.07.2014 passed by the Additional District Judge, Dholpur (hereinafter referred to as "the executing Court") in execution petition No. 20 -A/2011, whereby the executing Court has dismissed the application filed by the appellant -objector, raising objections against the execution of the decree dt. 01.04.2009 passed in favour of the respondent No. 1 in civil suit No. 9/2006. In the instant case, it appears that the respondent No. 1 -plaintiff having filed the suit seeking specific performance of the agreement against the respondent Nos. 2 and 3 in the Court of Additional District Judge (Fast Track) No. 1, Dholpur, the said suit was decreed by the trial Court vide the decree dt. 01.04.2009 by holding that the respondent No. 1 -plaintiff was entitled to get the decree of specific performance in respect of the 3/4th portion of the land in question from the respondent No. 2. The said decree has been challenged by the respondent No. 2 Smt. Ketuki by filing the first appeal being No. 286/2009. In the said appeal, this Court vide the order dt. 01.12.2010 had stayed the execution of the decree in question on the condition that the present respondent No. 2 (i.e. the appellant in the said first appeal) shall deposit the amount of Rs. 6,35,000/ - within a period of one week. It appears that the respondent No. 2 -judgment debtor did not comply with the said order passed in the said first appeal No. 286/2009, and hence respondent No. 1 -decree holder filed the execution proceedings before the executing Court. In the said proceedings, the present appellant filed the objection petition under Order XXI, Rule 97, 98 and 99 of C.P.C., alleging inter alia that he was the adopted son of the respondent No. 2 Smt. Ketuki, and therefore he had a share in the disputed property. The said application has been dismissed by the executing Court vide the impugned order dt. 15.07.2014. Being aggrieved by the said order the appellant -objector has filed the present appeal.

(2.) IT has been sought to be submitted by the learned counsel Mr. Manoj Avasthi for the appellant that the appellant being the adopted son of the respondent No. 2 was the co -sharer in the land in question, and therefore the decree could not be executed. He further submitted that the appellant had also filed the proceedings before the SDM Court by filing the suit for partition, which was decreed in favour of the appellant, and that the respondent No. 2, had not preferred any appeal against the said order, however the respondent No. 1 having filed an appeal against the said order before the RAA, the same was allowed. He also submitted that the order passed by the RAA is under challenged before the Tribunal. According to Mr. Avasthi, the executing Court had failed to consider the said proceedings in the right perspective and had wrongly dismissed the application.