Dismissed

Kistoorchand and Anr. v. Smt Badami Devi and Ors.

Rajasthan HC3 Mar 2014CW/6892/2010

Case brief

AI extract

What is this about?

The High Court of Rajasthan, Jaipur Bench, dismissed a writ petition challenging an order by the executing court that rejected the judgment-debtors' objections to the execution of a permanent injunction decree allowing respondents to construct on shop roofs.

What did the court decide?

The writ petition filed by the petitioners-judgment-debtors challenging the executing court's order dismissing objections to execution proceedings was dismissed.

Kistoorchand and Anr. Vs Smt Badami Devi… — Civil Procedure and Limitation | Rajasthan HC (2014)

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S.B. CIVIL WRIT PETITION NO.6892/2010 (Kistoorchand & Anr. Vs. Smt. Badami Devi & Ors.)

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(1)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR

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O R D E R

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S.B. CIVIL WRIT PETITION NO.6892/2010

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(Kistoorchand & Anr. Vs. Smt. Badami Devi & Ors.)

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Date of Order : 03.03.2014

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HON'BLE MS. JUSTICE BELA M. TRIVEDI

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Mr. Vinay Mathur, for the petitioners. Mr. V.K. Tamoliya, for the respondents. BY THE COURT

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1. The present writ petition has been filed by the petitioners-judgment-debtors under Article 226 of the Constitution of India challenging the order dated 30.03.2010, passed by the Civil Judge (J.D.), Lalsot, District Dausa (hereinafter referred as to 'the executing court') in execution application No.2/2007, whereby the executing court has dismissed the objections raised by the petitioners-judgmentdebtors under Section 47 of CPC.

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2. In the instant case, it appears that the predecessor of the respondents-plaintiffs-judgment-creditors had filed a suit being No.119/1982 for permanent injunction in respect of the properties in question, in which the Civil Judge (J.D.), Lalsot, District Dausa had passed the following decree :

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दावा वादी ल�लू ्ऺसाद िदनांक 16.09.1982 बहक वादी िखलाफ्ऺ ितवादीगणमय खचार् िड्वी िकया जाता है । (1) ्ऺितवादी No.1 को �थाई िनषेधा्ञा ्षारा पाबंद िकया जाता है िक ्ऺितवादी No. 1 क�बा लालसोट म� लालसोट गंगापुर रोड पर मेटरिनटी होम से उ�र की ओर सटी हुई अपनी दोन� दुकानात जो वाद प्ऴ के पैरा No.1

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S.B. CIVIL WRIT PETITION NO.6892/2010 (Kistoorchand & Anr. Vs. Smt. Badami Devi & Ors.)

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(2)

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म� विणर्त है की छत को िकसी �यि्व को रहन, िव्वय या ह�तांतिरत करने से सदैव के िलए �थाई �प से ्ऺितबंिधत रहे तथा इन दुकानात की छत पर वादी के आिधप�य म� एवं वादी ्षारा िनमार्ण करने से �वयं या अपने एज�टो ्षारा दखल देने से भी सदैव के िलए ्ऺितबंिधत रहे । (2) ्ऺितवादी No.2 को �थाई िनषेधा्ञा्ष ारा पाबंद िकया जाता है िक ्ऺितवादी No.2 लालसोट म� जवाहर गंज रोड पर ि�थत �वयं की दुकान उ�र �या िजसका वणर्न वाद को प्ऴ के पैरा No.3 म� िकया गया है की छत को िकसी �यि्व रहन, िव्वय या िकसी भी ्ऺकार ह�तांतिरत करने के िलए सदैव के िलए ्ऺितबंिधत रहे| उस पर वादी के क�जे तथा िनमार्ण कायर् म� �वयं अथवा एज�टो ्षारा दखल देने से सदैव के िलए ्ऺितबंिधत रहे | (3) ्ऺितवादीगण के िखलाफ यह �थाई िनषेधा्ञा भी पािरत की जाती है िक ्ऺितवादीगण वाद प्ऴ के पैरा Nos.1, 2 व 3 म� विणर्त चारो दुकान� की छत पर कोई िनमार्ण कायर् करने या क�ज़ा करने से सदैव के िलए ्ऺितबंिधत रहे |

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3. It appears that the said decree was challenged by the petitioners-judgment-debtors before the appellate court, however the appeal was dismissed by the appellate court, and thus the said decree had remained final. It further appears that the respondent Nos.1 to 4-judgment-creditors thereafter had filed the execution proceedings against the petitioners-judgmentdebtors seeking execution of the decree in question, and also praying for demolition of the construction, if any, made on the disputed site. The petitioners-judgment-debtors filed objections under Section 47 of CPC, which have been ordered to be dismissed by the executing court vide the impugned order dated 30.03.2010. Being aggrieved by the same, the present petition has been filed.

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S.B. CIVIL WRIT PETITION NO.6892/2010 (Kistoorchand & Anr. Vs. Smt. Badami Devi & Ors.)

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(3)

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4. It has been sought to be submitted by the learned counsel, Mr. Vinay Mathur, for the petitioners-judgment-debtors that the execution proceeding at the instance of the respondent Nos.1 to 4-judgment creditors was not maintainable the same having been filed after the prescribed period of limitation. He has further submitted that the petitioners-judgment-debtors are in possession of the shops in question and any construction put up by the respondents-judgment-creditors on the said shops was not permissible. However, the learned counsel, Mr. V.K. Tamoliya, for the respondents-judgment-creditors has submitted that as per the decree passed by the trial court, they are in possession of the roof portion of the shops in question and were also entitled to put up the construction thereon.

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5. Having regard to the submissions made by the learned counsel for the parties and to the impugned order passed by the executing court, it appears that the present petitioners were the original defendant Nos.1 & 3 in the suit. By the decree in question, the trial court had restrained the defendant No.1 from causing any obstruction to the respondents-plaintiffs in carrying out the construction on the disputed shops, as the respondentsplaintiffs were found to be the owner and in possession of the roof of the said shops. Both the petitioners-defendants were also restrained from carrying out any construction on and from taking over the possession of the roof of the four shops from the respondents-plaintiff. In view of the said decree, it clearly

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S.B. CIVIL WRIT PETITION NO.6892/2010 (Kistoorchand & Anr. Vs. Smt. Badami Devi & Ors.)

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(4)

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transpires that the respondents, who were the heirs of the original plaintiff Lallu Prasad were entitled to carry out the construction on the roof part of the disputed shops, which were found to be in their possession and of their ownership. The petitioners having been permanently injuncted from carrying any obstruction to the respondents-plaintiffs in causing out the construction over the disputed shops, the respondents were entitled to execute the decree in question if they were being obstructed by the petitioners in violation of the said decree. The executing court having rightly considered the objections raised by the petitioners-judgment-debtors, this Court does not find any illegality in the impugned order.

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6. The petition being devoid of any merit, is dismissed.

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(BELA M. TRIVEDI), J

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MS/-

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All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.- Manoj Solanki, Jr. P.A.

Kistoorchand and Anr. v. Smt Badami Devi and Ors.

Case brief

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Kistoorchand and Anr. v. Smt Badami Devi and Ors.

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