LRS OF JAIGOPALCHARYA Vs. SHYAM PRAKASH

JUDGEMENT

(1.) Petitioners-judgment-debtors, have preferred this revision petition under section 115, Code of Civil Procedure, 1908 (for short, 'CPC') to assail order dated 15th of Dec., 2015, passed by Sr. Civil Judge, Nathdwara, District Rajsamand (for short, 'learned Executing Court'), whereby learned Executing Court has rejected the applications submitted on their behalf in Execution Case No. 07/13 under Sec. 3 read with Art. 136 of the Limitation Act, under Order 21, Rule 2223(2) read with section 151 Code of Civil Procedure and under Order 7, Rule 11 read with section 141 CPC, and has allowed application of the respondent-decree-holders dated 23rd of May 2015. The Executing Court also issued warrant against petitioner-judgment-debtors under Order 21, Rule 30, Order 21, Rule 35 and Order 21, Rule 32 CPC.

(2.) Scorning the checkered history of the case, for the purpose of this revision petition, suffice it to state that a suit for redemption of mortgage and recovery of possession was filed at the threshold by plaintiffs Navneet Lal and Harikant, sons of Shri Jugal Kishore Vyas. The suit continued for sometime but finally the contesting parties settled the dispute by mutual agreement and in terms of compromise decree was passed by Civil Judge (Jr.Div.) cum Judicial Magistrate, Nathdwara, Rajsamand on 8th of Sept., 1997. In terms of compromise, as per the version of petitioners, possession of the suit property was not handed over by the respondents till 17th of Jan., 2011, i.e., uptil expiry of limitation and therefore after obtaining possession and obtaining requisite permission for construction of shop from Municipal Council, when steps were taken by them for demolition of earlier structure and raising new construction, Municipal Council stayed the sanction. This action of the Municipal Council was questioned by the petitioners-judgment-debtors but the learned Addl. District Judge, Nathdwara did not find any fault with the same and therefore the petitioners challenged the said order before this Court. In the interregnum, first respondent submitted an application for execution of the compromise decree. As the matter remained sub-judice before this Court for raising construction at the behest of petitioners, execution of decree was not possible. In this behalf, a notice was given by the respondents to the petitioners on 15th of July 2011. The aforesaid notice was replied by the petitioners. The execution laid on behalf of first respondent was resisted by the petitioners and objections were submitted by precisely questioning the executability of the decree on the ground that the same is unregistered and the Court which has passed the decree was lacking pecuniary jurisdiction. It is pertinent to note here that in the objections submitted on behalf of petitioners there was no whisper about the notice of the respondents dated 15th of July 2011 and its reply on behalf of petitioners. The learned Executing Court, after hearing learned counsel for the parties, rejected the objections.

(3.) I have heard learned counsel for the parties at length, perused the impugned judgment and also thoroughly examined the written submissions made on behalf of petitioners.