Vinod Kumar S/O Shri Radheyhyam ... vs Shambhudayal S/O Shri Nathmal
2022 Latest Caselaw 5246 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

          S.B. Execution Second Appeal No. 2/2022

Vinod Kumar S/o Shri Radheyhyam Alias Vidhyadhar
                                                                      ----Appellant
                                    Versus
Shambhudayal S/o Shri Nathmal & Ors.
                                                                  ----Respondents

For Appellant(s)          :     Mr. Rahul Agarwal
For Respondent(s)         :



           HON'BLE MR. JUSTICE SUDESH BANSAL

                                     Order

28/07/2022

Appellant-plaintiff has preferred this execution second appeal

under Section 100 read with Order 42 Rule 1 of Civil Procedure

Code, assailing the judgment and decree dated 08.07.2022

passed by Additional District Judge No.4, Sikar in Civil Appeal

No.14/2018, affirming the judgment and decree dated 17.03.2018

passed by Additional Civil Judge No.2, Sikar in Civil Misc.

Execution No.5/2012 whereby his application under Order 21 Rule

101 read with Rule 99 CPC, has been dismissed.

Counsel for appellant submits that appellant-objector is the

allottee of the Kiosk in question from Municipal Council, Sikar and

having lawful possession over the same and running his business

of manufacturing and selling of bangles. The kiosk is measuring

about 6X7 feet and was allotted in the year 2003 and possession

was delivered on 20.02.2004.

Counsel for appellant submits that it appears that

respondents-plaintiffs had instituted a civil suit for permanent

(2 of 2) [EXSA-2/2022]

injunction in relation to a piece of land against the Municipal

Council, Sikar in the year 1999 and that suit was decreed in their

favour vide judgment dated 16.04.2005. In execution of that

decree, respondents-plaintiffs are inclined to remove the kiosk of

appellant with an allegation that kiosk has been established on

their land after passing the decree dated 16.04.2005. In fact,

respondents-plaintiffs themselves have admitted in their suit

proceedings that during course of suit proceedings, the kiosk in

question has been established on the land and prayed to remove

the same but their prayer was declined by the trial Court. In that

view, respondents-plaintiffs have no right to remove the kiosk of

appellant-objector through execution proceedings of the decree

dated 16.04.2005.

Both Courts without adverting such aspects of the matter

and without framing issues has summarily dismissed objections of

the appellant. As per procedure of law prescribed under Order 21

Rule 97 to 103 CPC, objections of appellant should have been tried

like a suit though in summary manner.

Heard.

Issue notice to respondents.

Record of both Courts below along with the original suit

proceedings be summoned.

In the meanwhile, appellant shall not be dispossessed and

prevented from using the kiosk in question.

(SUDESH BANSAL),J

NITIN /15

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