MUSTAK ALI Vs. SHEELA DEVI & ORS

JUDGEMENT

(1.) The present petition has been filed by the petitioner-applicant challenging the order dated 18.4.15 passed by the Civil Judge & Judicial Magistrate, Kishangarh, District Ajmer (hereinafter referred to as 'the executing court') in Civil Execution Petition No. 5/2000 whereby the executing court has dismissed the application of the petitioner filed under Section 47 of CPC.

(2.) It appears that the respondent Nos. 1 and 2-original plaintiffs had filed the suit for permanent injunction against the respondent No.3-defendant, which suit was decreed on 26.10.99 on the compromise arrived at between the parties. It further appears that thereafter the respondent Nos. 1 and 2-judgment creditor filed an application under Order XXI Rule 11 of CPC before the executing court against the respondent No.3-judgment debtor alleging interalia that the respondent No.3 had raised a wall admeasuring 60 x 50 feet on the part of the disputed land of the plaintiffs and that the said wall was hampering the egress and ingress of the judgment creditors. It further appears that in the said execution petition the respondent No.3 had filed the reply dated 8.3.2000 stating interalia that there was no violation of the terms of the compromise decree, however the respondent No.3 was ready to demolish the wall if the court found that there was any violation of the said decree. Thereafter the present applicant filed an application in the said execution proceedings under Section 47 of CPC alleging that he was in possession of the disputed part of the land and that the respondents in collusion with each other had got the compromise decree in the said suit. According to the applicant, the wall in question was raised by his father Shri Abdul Hakim who had purchased the land in question from the respondent No.3 through an agreement dated 22.3.93. The said application of the petitioner has been rejected by the executing court vide the impugned order against which the present petition has been filed.

(3.) It has been sought to be submitted by the learned counsel Mr. Peush Nag for the petitioner that the petitioner was in possession of the disputed land by virtue of the agreement executed by the respondent No.3 in favour of the father of the petitioner and that the disputed wall was also constructed by him, however the respondent No.3 in collusion with the respondent Nos. 1 and 2 had got the compromise decree passed by the courtand now are bent upon demolishing the said wall. He also submitted that the applicant had already filed a separate suit seeking cancellation of the said decree which is pending before the concerned court, however till the said suit is decided, the compromise decree should not be executed.