LALITA Vs. CIVIL JUDGE JR DIV UDAIPUR CITY

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The petitioner is aggrieved against the order dated 1-2-2005 by which the executing Court in a petition filed under Order 21, Rule 97, CPC proceeded to decide; (i) whether the petition under Order 21, Rule 97, CPC be decided after allowing parties to lead oral evidence or (ii) whether the Court should proceed to decide the petition finally on the basis of the material available on record and after hearing the parties. The executing Court in detail order held that there is no need to allow the parties to submit oral evidence and the matter can be decided on the basis of evidence already available on record, but after hearing both the parties.

(3.) The apprehension of learned counsel for the petitioner-objector is that the executing Court without finding out what are the issues involved in the dispute held that there is no need to allow evidence of the parties and thereby the executing Court has judged the matter without formulating any point for determination, which was necessary for conclusion that whether the evidence is required for deciding the issues or not. According to learned counsel for the petitioner after order dated 1-2-2005 since the Court has fixed the case for final arguments, therefore, in view of the reasons given in the impugned order, the petitioner's all rights, available under the provisions of Civil Procedure Code like submitting the more affidavits and documentary evidence and of seeking permission from the Court to cross-examine opponents witness, have been taken away and that too, as seated above, without formulating the point for determination. According to learned counsel for the petitioner even from the order, it clearly appears that the executing Court proceeded to hold that only point involved in the matter is whether the rent deed was executed or not between the parties and by implications of all the petitioner's objections.