JUDGMENT - VIJAY DAGA, J.:---The writ petition is filed at the instance of original plaintiff/decree holder and assignee of the plaintiff/decree holder and same is directed against the order dated 26th March 1997 passed below Exhibits 33 and 50 and order dated 29th August 1997 passed below Exhibit 73. Both the orders are passed in Regular Darkhast No. 126 of 1996, by the Civil Judge, Junior Division, Karad upholding the contention of the objectionist respondent No. 1 in writ petition.

2. The objections were filed by the objectionist respondent No. 1, objector/third party to the execution of the decree. The said objections were treated as objections under Order 21, Rule 97 of the Code of Civil Procedure ("C.P.C." for short), marked Exh. 33.

3. The application for amendment (Exh. 50) was also moved by respondent No. 1 to join him as party to the said execution proceedings, so as to amend the execution application marked as Exh. 33, which was subsequently renumbered as Miscellaneous Civil Application No. 10 of 1997.

4. The Civil Revision Application No. 1168 was filed by the obstructionist to challenge the order dated 1st October 1997 whereunder the above Executing Court rejected the application (Exh. 80) filed by him pointing out to the Court that the subject matter was beyond the pecuniary jurisdiction of the Executing Court and requested for transfer of the execution proceedings with his petition for objections (Exh. 33) to the competent Court, namely, the Court of Civil Judge, Senior Division, Karad.

5. All the three orders referred to above arise out of the one and the same execution proceeding. The parties are same in both the proceedings. The issues are also more or less identical. As such, both the matters were ordered to be heard together vide order dated 28th November 1997. This single judgment will dispose of both the proceedings.

6. The facts giving rise to the present litigations, in nutshell, are as under:

BACKGROUND FACTS

7. The petitioner No. 1 by deed of mortgage, had mortgaged three properties in favour of one Shri Sakharam Tatya Todkar, father and predecessor-in-title of respondent No. 2. The said Sakharam was then put in possession of the said properties as mortgagee. The petitioner No. 1 since was in need of some money, sold two out of these three mortgaged properties to the said Sakharam Todkar sometime in the month of July 1958. The said mortgage in respect of third property viz. agricultural land bearing Revised Survey No. 227/1-B/1-A (old Survey No. 585/1-B/1) admeasuring about 27.5 gunthas, however, continued to remain with him. The said property has been referred to as the "suit property" in the present litigation.

8. The petitioner, on 5th May 1984, had filed a Regular Civil Suit No. 186 of 1984 for redemption of the mortgage and for possession of the said property against respondent No. 2 and the original mortgagee Sakharam Todkar. The suit was resisted by respondent No. 2. However, the suit was decreed on 30th November 1989 and the trial Court directed redemption of the mortgage in favour of petitioner No. 1 and further directed respondent No. 2 to hand over possession of the suit property to petitioner No. 1.

9. The petitioner No. 1, on 29th September 1995, filed a Regular Darkhast No. 126 of 1995 for execution of the decree. The Executing Court on the same day, issued notices under Order 21, Rule 22 of C.P.C. to the judgment debtor-respondent No. 2. The judgment debtor-respondent No. 2, on 6th April 1996, filed his reply to the said notice. However, no objection to the execution of the decree was raised by him.

10. The petitioner No. 1 during the pendency of the execution proceedings, sold the suit property to petitioner Nos. 2 and 3 for a valuable consideration and executed a registered sale deed in their favour. The petitioner No. 1, under the terms of the deed of sale also assigned its rights under the decree in favour of petitioner Nos. 2 and 3. In pursuance of the said sale deed, petitioner Nos. 2 and 3

Click Here to Read the rest of this document