ORAL ORDER

1. The instant petition is filed under Article 227 of the Constitution of India by the petitioners challenging the judgment and order dated 27.10.2021 passed by the learned Principal Senior Civil Judge, Navsari below Exh.01 in Special Civil Execution Petition No.05 of 2014.

2. Brief facts of the case are as under:-

2.1 The petitioner herein is the original respondent in Special Civil Suit No 187/2000 (66/1996) in the court of learned Civil Judge Senior Division. The respondent challenged Special Civil Suit No 187/2000 (66/1996) before the Honourable High Court and the matter was transferred to the District Court Navsari vide Regular Civil Appeal No.156/05, the matter went in the favour of the respondent dated 09-02-2011 by learned 2nd Additional District Judge Navsari Sitting At Ahwa.

2.2 It is the case of the petitioner in the plaint that the petitioner, that the petitioner had approached respondent branch at Chikhali to obtain loan for construction of a house on the property situated at Saputara Plot No. 85.

2.3 The respondent had sanctioned the loan amounting to Rs. 3,00,000/-, by first instalment on 01-10-1991 amounting to Rs. 2,00,000/- and second instalment on 28-04-1992 amounting to Rs. 1,00,000/- at the interest of 15% per annum against 8 policies where the paid deposit to L.I.C as per date 30-03-2016 is total amounting to Rs. 3,50,000/-.

2.4 The respondent then after in the year 2014 approached learned Principal Senior Civil Judge, Navsari, for execution of the order and in 2016 was ready to settle the dispute with accepting full and final settlement amount of Rs. 3,50,000/- dated 30-03- 2016. The amount of Rs. 3,50,000/- was accepted by the respondent and was left for competent authority to decide on the settlement and with a condition that if the matter was not settled, the amount would be refunded within a month.

2.5 Vide judgment and order dated 27.10.2021 passed by the learned Principal Senior Civil Judge, Navsari below Exh.01 in Special Civil Execution Petition No.05 of 2014, whereby the learned trial Court passed an order in favour of the respondent issuing warrant of recovery without considering the recovery amount. Hence, this petition.

3. Heard learned advocate Ms. Vidhi Bhatt for learned advocate Ms. Atraya Trivedi for the petitioner and learned advocate Mr. DT Dave for the respondent.

4. Learned advocate for the petitioners after referring to the judgment of the Hon’ble Apex Court in case of PK Singh Vs. SN Kanungo and others reported in (2010) 4 SCC 504 would submit that the learned Executing Court has failed to understand the provisions of section 47 of the CPC; various questions have been raised by the judgment debtor based upon the letter issued by the LIC – judgment holder dated 30.3.2016, whereby, compromise has been arrived at between the parties reflects. She would further submit that whether such compromise is adjusted towards the decree passed by the learned trial Court in the suit is to be decided by the learned Executing Court; whether such adjustment is partial or full and whether such decree merges in such adjustment or not, or the amount stated therein is considered to be partial payment, was required to be considered by the learned Executing Court, but the learned Executing Court has failed to understand this issue.

5. Learned advocate Ms. Bhatt would further submit that pursuant to the letter dated 30.3.2016, the petitioners have paid Rs.3,50,000/- to the LIC and believed that the entire decree is adjusted. She would further submit that the petitioners were under the impression that since the complete adjustment has been made, the execution proceedings are closed, but once the recovery of attachment warrant was issued under Order 21 Rule

30 of the CPC, the petitioner came to know about the continuous proceedings of the execution. She would further submit that the objections were filed before the learned Executing Court, but the learned Executing Court has not considered the objection and