Rajasthan High Court - Jodhpur
Ballu vs Vinod Kumar on 20 July, 2019
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Execution First Appeal No. 5/2019
1. Ballu S/o Bhallaji, Aged About 43 Years, B/c Rajput, R/o
Village Torna, Mount Abu, Tehsil Abu Road, District Sirohi
(Raj.)
2. Smt. Sharda W/o Late Shri Mansingh, Aged About 60
Years, B/c Rajput, R/o Village Torna, Mount Abu, Tehsil
Abu Road, District Sirohi (Raj.)
3. Keshar Singh S/o Late Shri Mansingh, Aged About 40
Years, B/c Rajput, R/o Village Torna, Mount Abu, Tehsil
Abu Road, District Sirohi (Raj.)
4. Himmat Singh S/o Late Shri Mansingh, Aged About 37
Years, B/c Rajput, R/o Village Torna, Mount Abu, Tehsil
Abu Road, District Sirohi (Raj.)
5. Babu Singh S/o Late Shri Mansingh, Aged About 34 Years,
B/c Rajput, R/o Village Torna, Mount Abu, Tehsil Abu
Road, District Sirohi (Raj.)
6. Jamna D/o Late Shri Mansingh, Aged About 31 Years, B/c
Rajput, R/o Village Torna, Mount Abu, Tehsil Abu Road,
District Sirohi (Raj.)
----Appellants
Versus
1. Vinod Kumar S/o Murarilal, B/c Agarwal, R/o Sadar Road,
District Sirohi.
2. Smt. Laxmi Kanwar W/o Shri Gheesu Singh, Aged About
56 Years, B/c Rajpurohit, R/o Hill View Bangla,
Gaurachhapra, Mount Abu, Tehsil Abu Road, District Sirohi
(Raj.)
3. Shaitan Singh S/o Madho Singh, R/o Chenar Teh. Abu
Road, Dist. Sirohi
----Respondents
For Appellant(s) : Mr. O.P. Mehta
For Respondent(s) : Mr. Shreyansh Mardia
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(2 of 3) [EXFA-5/2019]
HON'BLE MR. JUSTICE P.K. LOHRA
Order 20/07/2019 It is submitted by learned counsel Mr. Mehta that the learned Executing Court of Addl. District Judge, First, Abu Road, District Sirohi, while considering the application of respondent decree- holder under Order 21 Rule 98 CPC and objections of appellants judgment-debtors under Section 47 CPC regarding executability of the decree for specific performance of contract, has not at all cared to examine the question relating to executability of the decree.
It is also argued by learned counsel that executability of the decree qua appellant No.1 Ballu is under serious cloud inasmuch as at the time of alleged execution of agreement-to-sale he was minor and the other judgment-debtor Man Singh had died, against whom proceedings of execution were dropped without bringing his LRs on record, therefore, decree against him as such is also not executable to the extent of rights of his legal heirs.
Mr. Mehta has further submitted that the agreement-to-sale is executed on behalf of judgment-debtors by their power of attorney Shaitan Singh but appellant Ballu being minor at that point of time, such power of attorney is of no consequence having direct adverse ramification on the agreement to sale. It is also argued that after death of Man Singh, the power of attorney given by him to Shri Shaitan Singh also lost its significance vis-a-vis him but this aspect is completely overlooked by learned executing Court.
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(3 of 3) [EXFA-5/2019] Per contra, learned counsel Mr. Shreyansh Mardia submits that the property in question was sold by judgment-debtors to one Smt. Laxmi Kanwar after passing of the decree and her application/objections have already been rejected by the learned executing Court. Learned counsel submits that the well-reasoned order of learned executing Court warrants no interference inasmuch as questions raised by the appellants are insignificant. In support of his arguments, learned counsel has placed reliance on following decisions of Gauhati High Court, Allahabad High Court and this Court:
• M/s. P.N. Pharma Marketing Service Pvt. Ltd. & Anr. Vs. M/s. Nicholas Piramal India Limited (CRP No.500 of 2006, decided on 9th of April, 2014) • Hira Devi Vs. Harinath Chaurasiya & Ors. (AIR 1989 All. 11) • Gopal Lal Sharma Vs. Smt. Bharti Verma [2019(1) DNJ (Raj.) 14].
After hearing learned counsel for the parties and perusal of impugned order, in my opinion, matter requires consideration.
Admit. Issue notice.
Notices qua respondent No.1 are waived. Issue notice to other respondents.
Notice of stay application be issued returnable within three weeks and be given 'Dasti' for service to the learned counsel for appellants.
In the meanwhile and until next date of hearing effect and operation of order dated 5th of July, 2019 shall remain stayed.
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