Rajasthan High Court - Jodhpur
Lrs.Of Ram Vilas vs Lrs.Of Bhagwati Lal on 10 October, 2011
Author: Vineet Kothari
Bench: Vineet Kothari
S.B.CIVIL REVISION PETITION NO. 263/2008
L.Rs of Ramvilas vs. L.Rs of Bhagwati Lal
Order dt: 10/10/2011
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S.B.CIVIL REVISION PETITION NO. 263/2008
(L.Rs of Ramvilas vs. L.Rs of Bhagwati Lal)
DATE OF ORDER : 10/10/2011
HON'BLE DR.JUSTICE VINEET KOTHARI
Mr. Abhinav Jain, for the petitioner.
Mr. B.N.Kalla, for the respondent.
By this revision petition filed by the Judgment-debtor - Legal representatives of Ram Vilas, a challenge has been made to an order dated 18/8/2008 passed by the learned Executing Court of Civil Judge (Sr. Div.), Chhoti Sadri, Pratapgarh, whereby, the learned court while refusing to stay the execution proceedings in execution case no. 125/1974 - Bhagwatilal vs. Ram Prasad, the learned trial court by another order of same date has also issued warrant against judgment debtors under Order 21 Rule 35 CPC.
Learned counsel for the petitioner, Mr. Abhinav Jain urged that under the garb of decree held by the respondent, the common wall, which was subject matter of the suit, is being removed and, therefore, judgment debtor had to file another suit in the matter in which status quo order has been passed by the learned trial court on 1/9/2001 and, therefore, the impugned order dated 18/8/2008 is inconsistent with the said order passed by learned trial court itself and no warrant under Order 21 Rule 35 CPC, applicable in the case of decree for immovable property for giving the possession thereof, could be passed in the present matter of dispute over the common wall between S.B.CIVIL REVISION PETITION NO. 263/2008 L.Rs of Ramvilas vs. L.Rs of Bhagwati Lal Order dt: 10/10/2011 2/2 the parties.
Learned counsel for the respondent decree holder, Mr. B.N.Kalla supported the impugned orders.
Having heard the learned counsels, this Court is of the opinion that the subject matter of the suit itself, namely; common wall, cannot be permitted to be removed during the pendency of suit and, therefore, refusal to stay the execution in execution case no.125/74 as well as issuance of warrant under Order 21 Rule 35 CPC by the learned Executing Court was not justified in the circumstances.
Consequently, this revision petition of Judgment debtor, the plaintiff in subsequent suit is allowed. Both the impugned orders dated 18/8/2008 passed by the learned trial court are set aside. No order as to costs.
(DR.VINEET KOTHARI), J.
item no. 14 baweja/-