Patna High Court - Orders
Prabalad Mahto & Ors vs Arjun Mahton & Anr on 5 August, 2014
Author: Kishore Kumar Mandal
Bench: Kishore Kumar Mandal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.312 of 2004
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Prahalad Mahto & Ors
.... .... Appellant/s
Versus
Parmeshwari Devi & Ors.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Binod Kumar Singh
Mr. Pramod Mishra
Mr. Vivek Kumar
Mr. Prafull Chandra Thakur
For the Respondent/s : Ms. Sushmita Mishra,
Mr. Amit Prakash
Mr. Soni Shrivastava
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR
MANDAL
ORAL ORDER
36 05-08-2014Re. I.A. No. 3781 of 2014 Heard Ms. Sushmita Mishra in support of I.A. No. 3781 of 2014, which has been filed by the plaintiffs/respondents under order XXI, Rule 28 read with Section 151 of the C.P.C. The appellants have filed rejoinder thereto.
By filing the aforesaid application, the plaintiffs have prayed that in the light of the order dated 27.02.2012 passed in the present appeal the executing Court should proceed to execute and register the sale deed as per the decree passed in favour of the plaintiffs in execution case no. 02 of 2004. This Court noticed that a parallel proceeding was being pursued by the plaintiffs by filing the writ petition, and as such, the consideration of the matter Patna High Court SA No.312 of 2004 (36) dt.05-08-2014 2/5 was declined under order dated 21.07.2014. Learned counsel for the plaintiffs/respondents has stated that writ application being C.W.J.C. No. No. 19651 of 2012 has since been withdrawn on 31.7.2014.
The plaintiffs filed the suit for specific performance of contract. The suit was dismissed and an appeal was taken therefrom which was allowed. The plaintiffs armed with the decree filed Execution case no. 02 of 2004 for execution of the sale deed. The executing Court issued notice to the judgment debtor ( appellants herein) as required under order 21 Rule 34. The appellants appeared thereat but did not file any objection. The matter therefore remained pending for more than six years. In the meantime, the learned executing Court having found that there was no objection to the application filed by the plaintiffs ( decree holders) directed the office to take steps for such execution and registration of the sale deed. The Nazir was authorized to execute the sale deed. For one reason or another the matter again remained pending. The defendants/appellants after long delay moved an application in the present appeal being I.A. No. 4342 of 2005 for staying the further proceeding of Execution case no. 2 of 2004. This Court after considering the submissions of the parties passed an order, relevant part/portion thereof is extracted Patna High Court SA No.312 of 2004 (36) dt.05-08-2014 3/5 hereinbelow:-
"In view of the specific undertaking given on behalf of the plaintiff-respondent, the learned counsel appearing on behalf of the appellant has expressed no objection if the execution case is proceeded further for the execution and registration of the sale deed in favour of the plaintiff-respondent. However, the learned counsel for the appellant has prayed that the appellant should not be dispossessed during the pendency of this appeal.
In view of the facts and circumstances above mentioned and after considering the submissions of the learned counsels including the undertaking given on behalf of the plaintiff-respondent, it his hereby directed that the execution case no. 02 of 2004 pending before the Sub- Judge-II, Lakhisari shall proceed for the execution and registration of the sale deed in favour of the plaintiff-respondent. However, there shall not be delivery of possession of the suit land in favour of the plaintiff-respondent in pursuance to the judgment and decree in this appeal. This order will be subject to the filing of undertaking by the plaintiff- respondents on affidavit within two weeks."
It appears, in the meantime, there was change in the Presiding Officer of the executing Court. The defendants filed objection in the said proceeding. The executing Court by an order dated 12.9.2012, considered the objection and declined to grant the three applications filed by the plaintiffs for execution of the sale deed. In such circumstances, the present application has been filed seeking a direction upon the executing Court to proceed with Patna High Court SA No.312 of 2004 (36) dt.05-08-2014 4/5 the Execution proceeding and execute and register the sale deed subject to the conditions noted in the order dated 27.2.2012.
Mr. Vinod Kumar Singh, learned counsel for the appellants, submits that the executing Court has to execute the decree. Even if there is no objection filed by the judgment debtor the Court has a bounden duty to consider whether the execution is as per the decree drawn in the case.
Learned counsel for the respondents/petitioners, on the other hand, has submitted that in the particular facts of the case, the appellants cannot be allowed to file any objection for consideration. However, if the executing Court finds that the draft sale document furnished by the plaintiffs is not in accordance with the decree drawn in favour of the plaintiffs then the plaintiffs will make appropriate correction in order to make the draft palatable to the decree.
Having heard the parties, this Court directs the executing Court in seisin of Execution case no. 02 of 2004 to proceed with the Execution case no. 2 of 2004. If deemed necessary the Court will call upon the plaintiffs/applicants to make appropriate correction(s)/alteration(s) in the draft/document in order to make it consonance with the decree. Learned counsel for the respondent(s) has also taken the similar stand before this Patna High Court SA No.312 of 2004 (36) dt.05-08-2014 5/5 Court that if any change(s) is required and the plaintiffs are called upon the same shall be effected enabling the executing Court to proceed with the Execution case subject to the conditions that have been imposed by this Court.
The executing Court shall proceed with the Execution case in the light of the decree drawn as also the order passed by this Court on 27.02.2012, relevant part/portion whereof is extracted hereinabove, as quickly as possible preferably within two months from the date of receipt/production of a copy of this order.
Both parties have agreed for expeditious consideration of the appeal. Accordingly, this Court directs that the appeal shall be placed for consideration under Order 41, Rule 11 of the C.P.C in the 3rd week of September, 2014.
I.A. No. 3781 of 2014 stands disposed of.
(Kishore Kumar Mandal, J) Shyam/-
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