LAL CHAND (SINCE DECEASED) Vs. BHAGYAWATI (SINCE DECEASED)

JUDGEMENT

(1.) Under challenge is the order dated 20.10.2005 passed by the Additional District Judge No. 1, Kota whereby the executing court in the exercise of its powers under section 151 CPC allowed the restoration application filed by the respondent-decree holder (hereinafter 'decree holder') and recalled its order dated 18.7.1981 dismissing for non-prosecution the decree-holder's execution application No. 4/1979 in respect of the eviction decree dated 23.12.1977. Also under challenge is the Executing Court's order dated 28.9.2015 whereby the petitioner-judgment debtor (hereinafter 'judgment debtor') application for recall of its order dated 29.11.2005 has been dismissed. Consequential orders dated 28.9.2015 and 28.10.2015 relating to warrants of possession for the property from which the judgment-debtor is to be disposed and the decree-holder put into possession pursuant to the final decree for the eviction are also under challenge.

(2.) Admittedly on an eviction petition laid by one Bhagywati Devi (now deceased and represented by LRs) against her tenant Lal Chand (now deceased and represented by LRs) the judgment-decree in regard thereto to the plaintiff's benefit was passed on 23.12.1977. The decree-holder thereupon moved an Execution Application No. 4/1979 to be put in possession pursuant to the decree dated 23.12.1977.

(3.) The judgment-debtor-Lal chand in the eviction decree dated 23.12.1977 then appears to have laid a suit on 9.1.1979 seeking cancellation of the sale deed dated 18.12.1973 whereby the property had been conveyed for valid consideration in favour of the decree-holder whereafter his status was altered from owner to tenant. In said suit for cancellation of sale deed dated 18.12.1973 on 24.9.1980 Bhagywati Devi as defendant in the suit gave an undertaking to the trial court that the eviction decree dated 23.12.1977 would not be executed till further orders of the trial court. Subsequently the trial court vide interim order dated 24.9.1980 in Lal chand's suit passed an interim order restraining the execution of the eviction decree dated 23.12.1977.