Rajasthan High Court - Jodhpur

Nand Kishore vs Pushkarna Brahmin, B.K.M.V.S. And Ors. ... on 22 January, 2025

Author: Rekha Borana

Bench: Rekha Borana

[2025:RJ-JD:4178]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
            S.B. Civil Revision Petition No. 110/2016

Vijay Kumar son of Late Shri Jawan Mal, by caste Brahmin
(Vyas), aged about 58 years, resident of Sukhanand ki Bagechi,
Bhim ji ka Mohalla, Jodhpur (Raj.)
                                                                  ----Petitioner
                                   Versus
1. Pushkarna Brahmin, Bhimji ka Mohalla Vikas Samiti through
its President, Bhim Ji Ka Mohalla, Inside Jalori Gate Jodhpur
(previously Decreedar Jabbar Mal Purohit Potedar, Thikana Bhim
Ji Ka Mohalla, Jodhpur).
2. Moolraj Son of Shri Damodar Das
3. Asha Ram son of Shri Damodar Das
      Both by caste Vyas, resident of Sukhanand Ki Bagechi,
Swanchi Gate, Jodhpur, at present resident of Right Side of Pole,
Sukhanand Ki Bagechi, Swanchi Gate, Jodhpur.
                                                                ----Respondent
                             Connected With
            S.B. Civil Revision Petition No. 108/2016
Kamal Kishore son of Late Shri Jawan Mal, by caste Brahmin
(Vyas), aged about 78 years, resident of Sukhanand Ki Bagechi,
Bhim Ji Ka Mohalla, Jodhpur (raj.)
                                                                  ----Petitioner
                                   Versus
1. Pushkarna Brahmin, Bhimji ka Mohalla Vikas Samiti through
its President, Bhim Ji Ka Mohalla, Inside Jalori Gate Jodhpur
(previously Decreedar Jabbar Mal Purohit Potedar, Thikana Bhim
Ji Ka Mohalla, Jodhpur).
2. Moolraj Son of Shri Damodar Das
3. Asha Ram son of Shri Damodar Das
      Both by caste Vyas, resident of Sukhanand Ki Bagechi,
Swanchi Gate, Jodhpur, at present resident of Right Side of Pole,
Sukhanand Ki Bagechi, Swanchi Gate, Jodhpur.
                                                                ----Respondent
            S.B. Civil Revision Petition No. 109/2016
Shyam Lal son of late Shri Jawan Mal, by caste Brahmin (vyas),
aged about 52 years, resident of Sukhanand Ki Bagechi, Bhim Ji
ka Mohalla, Jodhpur (Raj.)


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                                                                  ----Petitioner
                                   Versus
1. Pushkarna Brahmin, Bhimji ka Mohalla Vikas Samiti through
its President, Bhim Ji Ka Mohalla, Inside Jalori Gate Jodhpur
(previously Decreedar Jabbar Mal Purohit Potedar, Thikana Bhim
Ji Ka Mohalla, Jodhpur).
2. Moolraj Son of Shri Damodar Das
3. Asha Ram son of Shri Damodar Das
      Both by caste Vyas, resident of Sukhanand Ki Bagechi,
Swanchi Gate, Jodhpur, at present resident of Right Side of Pole,
Sukhanand Ki Bagechi, Swanchi Gate, Jodhpur.
                                                                ----Respondent
            S.B. Civil Revision Petition No. 111/2016
Hemant Purohit son of Late Shri Amar Chand, by caste Purohit,
aged about 58 years, resident of Sukhanand ki Bagechi, Bhim ji
ka Mohalla, Jodhpur (Raj.)
                                                                  ----Petitioner
                                   Versus
1. Pushkarna Brahmin, Bhimji ka Mohalla Vikas Samiti through
its President, Bhim Ji Ka Mohalla, Inside Jalori Gate Jodhpur
(previously Decreedar Jabbar Mal Purohit Potedar, Thikana Bhim
Ji Ka Mohalla, Jodhpur).
2. Moolraj Son of Shri Damodar Das
3. Asha Ram son of Shri Damodar Das
      Both by caste Vyas, resident of Sukhanand Ki Bagechi,
Swanchi Gate, Jodhpur, at present resident of Right Side of Pole,
Sukhanand Ki Bagechi, Swanchi Gate, Jodhpur.
                                                                ----Respondent
            S.B. Civil Revision Petition No. 112/2016
Nand Kishore son of late Shri Jawan Mal, by caste Brahmin
(vyas), aged about 62 years, resident of Sukhanand Ki Bagechi,
Bhim Ji ka Mohalla, Jodhpur (Raj.)
                                                                  ----Petitioner
                                   Versus
1. Pushkarna Brahmin, Bhimji ka Mohalla Vikas Samiti through
its President, Bhim Ji Ka Mohalla, Inside Jalori Gate Jodhpur
(previously Decreedar Jabbar Mal Purohit Potedar, Thikana Bhim
Ji Ka Mohalla, Jodhpur).


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2. Moolraj Son of Shri Damodar Das
3. Asha Ram son of Shri Damodar Das
      Both by caste Vyas, resident of Sukhanand Ki Bagechi,
Swanchi Gate, Jodhpur, at present resident of Right Side of Pole,
Sukhanand Ki Bagechi, Swanchi Gate, Jodhpur.
                                                                ----Respondent
            S.B. Civil Revision Petition No. 113/2016
Rajendra Prasad son of Late Shri Sewa Ram, by caste Brahmin,
aged about 66 years, resident of Sukhanand ki Bagechi, Bhim Ji
Ka Mohalla, Jodhpur (raj.)
                                                                  ----Petitioner
                                   Versus
1. Pushkarna Brahmin, Bhimji ka Mohalla Vikas Samiti through
its President, Bhim Ji Ka Mohalla, Inside Jalori Gate Jodhpur
(previously Decreedar Jabbar Mal Purohit Potedar, Thikana Bhim
Ji Ka Mohalla, Jodhpur).
2. Moolraj Son of Shri Damodar Das
3. Asha Ram son of Shri Damodar Das
      Both by caste Vyas, resident of Sukhanand Ki Bagechi,
Swanchi Gate, Jodhpur, at present resident of Right Side of Pole,
Sukhanand Ki Bagechi, Swanchi Gate, Jodhpur.
                                                                ----Respondent


For Petitioner(s)        :     Mr. Prashant Tatia for
                               Mr. Sajjan Singh Rajpurohit
For Respondent(s)        :     Mr. Hemant Ballani



              HON'BLE MS. JUSTICE REKHA BORANA

Order

22/01/2025

1. The present revision petitions have been filed by the

petitioners aggrieved of the order dated 20.07.2016 passed by the

Civil Judge, Jodhpur Metro in Civil Misc. Case Nos.39/2016,

38/2016, 35/2016, 37/2016, 35/2016 & 40/2016 respectively

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whereby applications under Section 151, CPC as filed on behalf of

the petitioners stood rejected.

Vide the application, it was submitted on behalf of the

petitioners that the decree dated 29.07.1976 of which the

execution was sought, has itself been quashed and set aside and

hence, the present execution proceedings could not be continued.

2. Counsel for the petitioners submitted that the issue whether

after the decree in question having been set aside, the execution

proceedings could have been maintained on behalf of the decree-

holder was under consideration in S.B. Misc. Application

No.82/2016; Asha Ram vs. Pushkarna Brahmin Bhimji Ka Mohala

and Anr. which application stood decided vide order dated

11.03.2024 whereby it was held that the decree dated 29.07.1976

having been quashed and set aside on 29.08.1981, the decree did

not even exist/survive for execution.

3. Heard the counsels and perused the record.

4. The learned Executing Court while rejecting the application in

question vide impugned order dated 20.07.2016, observed that

vide order dated 01.12.2015 passed by this Court in S.B. Civil

Execution Second Appeal No.27/1994, a direction to the

judgment-debtors to hand over the possession to the decree-

holder in six months has already been passed. In pursuance to the

order dated 01.12.2015, even the undertaking had been filed by

the judgment-debtors before the Court and subsequently, even

the keys of the premise had been deposited with the Court.

However, it was revealed that the complete possession of the

premise was not handed over.

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5. A bare perusal of the impugned order reveals that the same

has been passed on the premise that the order dated 01.12.2015

has already been passed by this Court and hence, the Executing

Court is now only required to get the compliance of the said order

been made.

6. In Asha Ram (supra), the order dated 01.12.2015 has

already been recalled by this Court with the specific finding that

decree dated 29.07.1976 had already been set aside and hence,

no order to get the said decree executed could have been passed.

7. It is also relevant to note that the Special Leave to Appeal

Samiti Vs. Asha Ram and Ors. against the order dated 11.03.2024

passed in S.B. Misc. Application No.82/2016, as preferred on behalf

of the decree-holder has also been dismissed vide order dated

11.07.2024.

8. In view of the above subsequent facts to the effect that the

order dated 01.12.2015 has already been recalled and the same

has even been affirmed by Hon'ble the Apex Court, any

proceedings to execute the decree dated 29.07.1976 cannot

therefore be maintained.

9. In view of the above fact and in view of the admitted position

that the decree dated 29.07.1976 has already been set aside vide

order dated 29.08.1981, the execution proceedings to execute the

said decree which does not even survive, cannot definitely be

maintained. The order dated 20.07.2016 therefore being totally

contrary to the factual aspect as well as the position of law, thus

deserves inference and is hence, quashed and set aside.

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                                   10.   The     revision      petitions        are      hence,         allowed.   As    a

consequence, the execution application as filed by the decree-

holder also stands dismissed.

11. It is needless to observe that the present execution

proceedings have been dismissed only on the count of the decree

dated 29.07.1976 having been quashed and set aside. The same

would not come in the way of the decree-holder qua any of his

rights which have arisen because of the subsequent decree having

been passed in the year 1982.

(REKHA BORANA),J 423-428/praveen/-