Heard Shri. P. M. Shah, learned Senior Counsel holding for Shri. S. P. Shah. Advocate for the petitioner and Shri. R. N. Dhorde, learned Counsel holding for Mr. V. R. Dhorde. Advocate for the respondent.

Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties.

2. Petitioner - original judgment debtor is raising exception to the order passed by learned Civil Judge, Senior Division, Nanded, below application Exhibit-13 in Special Darkhast No.69/1998 decided on 12.03.2010.

3. Certain facts necessary for deciding the controversy involved in the matter can be summarised in nutshell as below:

On 14.08.1982, an agreement was entered into between petitioner and respondent in respect of sale of open plot out of S.No.61/B admeasuring about 22400 square feet situate within municipal limits of Nanded. The creditors of the petitioner had presented insolvency petition bearing no.84/1977 before the High Court Bombay. The property involved in the litigation was admittedly not mentioned in the insolvency proceedings. According to the petitioner judgment debtor, he was a un-discharged insolvent for the period between 07.09.1977 to 16.02.2001. The insolvency proceedings were annulled on 16.02.2001.

4. The decree-holders/respondents instituted Special Civil Suit No.50/1985 praying for a decree of specific performance against the petitioner and in the alternative, damages to the tune of Rs.9,40,800/- were claimed by respondents in the suit. On 16th April, 1986, parties entered into compromise and• decree in terms of compromise was recorded by the trial Court. The possession of disputed property came to be delivered to the decree-holder/respondent herein in pursuance to compromise. In terms of the compromise decree, petitioner herein admitted the suit claim to the extent of specific performance of contract subject to respondent herein agreeing to pay value of the plot. As per para 5 of the consent terms, defendant was to get released the property from insolvency proceedings within a period of six months and that he was to take discharge from the said proceeding and thereafter was required to execute registered sale-deed in favour of original plaintiff/respondent herein. In the event of failure of defendant petitioner herein to perform term no.5 within given time, plaintiff – respondent herein was at liberty to apply to official assignee for release of the property from said proceeding by depositing whole consideration amount in the Insolvency Court. It is noted in paragraph 8 of the consent terms that defendant (petitioner herein) has delivered possession of the property in question to the plaintiff and that he (defendant) agreed to execute registered sale-deed within one year from the date of compromise. It is also further recorded that if defendant (petitioner herein) fails to register the sale-deed, plaintiff (respondent herein) will be at liberty to get it registered through the Court at his expenses.

5. The application seeking execution of the decree is presented by decree-holder, being Execution Petition No.69/1998 on 13th April, 1998.

6. An objection is raised in the pending execution application by the judgment debtor by way of presenting an application under Section 47 of the Code of Civil Procedure. The application presented by petitioner herein has been turned down by the executing court in view of the order passed on 12th March, 2010 and the said order passed by the executing court is subject matter of challenge in this petition.

7. I have heard arguments advanced by Shri. P. M. Shah, learned Senior Counsel appearing for petitioner and Shri. R. N. Dhorde, learned Counsel appearing for respondent.

8. Following objections are raised in respect of the order passed by executing court:

(1) It is contended that Judgment debtor was an un-discharged insolvent between 17.09.1977 till 16.02.200.1 and by virtue of provisions of Section 17 of the Act, the property stands vested in the official assig