Rajasthan High Court

Mahendra Kishan Wali S/O Shri ... vs Prakash Chand Sancheti S/O Shri ... on 14 September, 2022

Bench: Sudesh Bansal

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

         S.B. Civil Revision Petition No. 150/2022

1.      Mahendra Kishan Wali S/o Shri Brijral Kishan Wali, R/o
        Garden, Moti Doongri Road, Jaipur (Died During The
        Pendency Of Execution Petition).
1/1.    Smt. Madhuwali W/o Late Shri Mahendra Kishan Wali,
        (Died During The Order Dated 29-04-2017).
1/2.    Kumari Ratnawali D/o Late Shri Mahendra Kishan Wali,
        R/o     Wali    Garden,         Moti      Doongri          Road,    Jaipur
        (Rajasthan).
1/3.    Kumari Ritu Wali D/o Late Shri Mahendra Kishan Wali,
        R/o     Wali    Garden,         Moti      Doongri          Road,    Jaipur
        (Rajasthan).
                                                                   ----Petitioners

                                    Versus

1.      Prakash Chand Sancheti S/o Shri Ratanlal Sancheti,
        R/o Bunglow No. 19A, Bardiya Colony, Museum Road,
        Jaipur @ Champa Devi W/o Late Ratan Lal Ji R/o
        (Rajasthan) Died During The Pendency Of Execution
        Petition Bungalow No. 19A, Bardiya Colony, Museum
        Road, Jaipur.
1/1.    Ratan     Champa        Cheritable        Trust,     Through       Trustee
        Rajesh Kothari, S/o Shri Jeetmal Ji Kothari, R/o
        Bungalow No. 19A, Bardiya Colony, Museum Road,
        Jaipur (Rajasthan).
1/2.    Smt Kanchanlata Dariwal W/o Late Shri Dilip Singh Ji,
        At Present R/o Prathvi Apartment, Prathviraj Road,
        Jaipur.
1/3.    Taruna Jain W/o Shri Rajkumar Jain, At Present R/o
        Flat No. 205, Ridhi-Sidhi Apartment, C-Scheme, Jaipur.

                                                               ----Respondents

For Petitioner(s) : Mr. Behari Lal Agarwal with Mr. Akash Gupta For Respondent(s) : Mr. Ashok Kumar Sharma with Mr. Tapasvi Vashishth

(2 of 6) [CR-150/2022]

HON'BLE MR. JUSTICE SUDESH BANSAL Judgment

14/09/2022

1. Petitioners are natural heirs and legal representatives of

defendant-judgment debtor namely, Mr. Mahendra Kishan Wali,

against whom in a suit for specific performance bearing

No.15/1988 titled Prakash Chand Vs. Mahendra Kishan Wali,

decree to specific performance of agreement to sale dated

20.09.1983 was passed vide judgment dated 31.01.1991.

2. Defendant challenged the decree dated 31.01.1991 by

way of filing First Appeal No.85/1991 which was dismissed vide

judgment dated 04.04.1994 and on filing the D.B. Special

Appeal (Civil) No.3/1995, the decree dated 31.01.1991 was

affirmed vide judgment dated 05.07.1995.

3. It is clear from record that Execution petition No.20/1995

was filed for execution of the decree and wherein, the part of

decree has been complied with by execution of the sale deed

dated 05.12.2003 by the Court in favour of Ratan Champa

Charitable Trust through Smt. Champa Devi, Smt. Taruna Jain

and Smt. Kanchanlata Dariwal as prayed for by decree holders

in terms of the judgment and decree dated 31.01.1991.

Thereafter, original defendant-judgment debtor Mr. Mahendra

Kishan Wali passed away and his wife and two daughters were

impleaded in the execution petition as respondents No.1/1, 1/2

and 1/3, who are present petitioners in the revision petition.

Defendant-judgment debtor Mr. Mahendra Kishan Wali's wife,

petitioner No.1/1 also passed away.

4. In Execution petition bearing No.20/1995, present

petitioners raised objection with regard to non-issuance of

(3 of 6) [CR-150/2022]

warrant for possession taking resort of Section 22 of the

Specific Relief Act and for claiming abatement of execution due

to death of original decree holder, however, the executing court

vide order dated 16.02.2017, turned down the objection and

allowed the substitution of persons, in whose favour the sale

deed dated 05.12.2003 was executed pursuant to the decree

and execution proceedings were further proceeded by issuing a

warrant for possession vide order dated 18.03.2017.

5. Petitioners resisted the warrant for possession by moving

an another application dated 07.10.2017, which was separately

registered as C.M.C No.40/2017 and the same was dismissed

vide order impugned dated 13.11.2017.

6. Earlier petitioners challenged the order dated 13.11.2017

by filing Civil Misc. Appeal No.591/2018 on 22.01.2018 wherein

notices were issued and interim stay of status quo was passed,

however, later on, the Civil Misc. Appeal No.591/2018 was not

found maintainable and was dismissed vide order dated

12.07.2022 with liberty to petitioners to file either writ petition

or revision petition against the order dated 13.11.2017.

Thereafter, petitioners have filed this revision petition on

18.07.2022, against the order dated 13.11.2017.

7. The Office has pointed out defect of delay in the present

revision petition, however, in view of the fact that a period

from 22.01.2018 to 12.07.2022, during which the Civil Misc.

Appeal No.591/2018 against the order dated 13.11.2017,

remained pending, hence the same deserved to be excluded in

view of Section 14 of the Limitation Act and learned counsel for

both parties are in agreement to treat the present revision

petition within limitation.

(4 of 6) [CR-150/2022]

8. Accordingly, the objection pointed out by the Office with

regard to the limitation, is waived.

9. Learned counsel for petitioners, in the present revision

petition, raised following two points to resist the warrant for

possession:-

(a) The prayer for possession in the suit was not made nor the decree speaks about delivery of possession, therefore, the warrant for possession cannot be issued.

(b) The execution in relation to seeking performance of the warrant for possession, has become time barred.

10. After arguments and going through the record, learned

counsel for petitioners, Sh. Bihari Lal Agarwal is fair enough to

concede that both these points do not arise at all, as in the

agreement to sale dated 20.09.1983, on the basis of which a

decree for specific performance was passed vide judgment

dated 31.01.1991, the recital of the execution of sale deed

dated 05.12.2003 and delivery of possession are mentioned

and further in the original Execution petition bearing

No.20/1995 filed on 26.08.1995 in Para No.5 and 14, the

prayer for possession was also made by decree holders.

Thus, both aforementioned points sought to be raised in

the revision petition are not sustainable and counsel for

petitioners, with consent of both petitioners No.1/2 and 1/3,

who are present in person in the Court, has sought prayer to

withdraw the revision petition and undertakes to vacate and

deliver the possession of suit property to respondents-decree

holders, in pursuance to the judgment and decree dated

31.01.1991.

(5 of 6) [CR-150/2022]

11. Learned counsel for petitioners has expressed some plight

on the part of petitioners No.1/2 and 1/3, being unmarried

ladies and having possession over the suit property since long,

and has humbly prayed that some time to vacate and hand

over the actual and physical possession of the suit property to

respondents-decree holder be granted.

12. Learned counsel appearing on behalf of respondents-

decree holder, which is a trust in the name of Ratan Champa

Charitable Trust, is kind enough to agree for grant of nine

months period, it means up to 30.06.2023, to petitioners to

vacate and hand over the physical possession, subject to

condition that both petitioners furnish written undertaking

before the High Court to this effect.

13. Therefore, with consent of learned counsel for both

parties, as per instructions of their respective clients, this Court

disposed of the present revision petition with following

directions:-

(I) Petitioners would be entitled to retain the possession of suit property lastly by 30.06.2023, subject to condition of furnishing a written undertaking to this effect before this Court in the present revision petition within a period of two weeks, supported with affidavit of both petitioners No.1/2 and 1/3 and by giving an advance copy to counsel for respondents.

(II) In case, written undertaking is furnished by petitioners No.1/2 and 1/3 as stipulated hereinabove, respondents-decree holders would not proceed to execute the warrant for possession till 30.06.2023.

(III) In case, petitioners violate their undertaking and do not hand over the vacant possession of the

(6 of 6) [CR-150/2022]

suit property to respondents, respondents-decree holders would be free to execute the warrant for possession with the aid of police help as also may initiate the contempt proceedings before this Court.