ORDER

This revision has been filed by the applicant/plaintiff being aggrieved by the order dated 12.3.2021 passed by Additional Judge to the Court of First Additional District Judge, Harda in Execution Case No. 20-

A/2013.

2 . The facts of the case, in short, are that a suit for specific performance of contract was filed by respondent No. 1 Vijay against respondent Nos. 2 and 3 in respect of property bearing Khasra No. 138/1 Nazul Sheet Number 13-A, area 135 sq. meter situated in front of Narmadiya Dharmashala in Thakurbaba Ward, Timarni, District Harda, which belonged to late Rameshwar Das, who died in the year 2007 at Timarni. The property remained in the hands of three children of late Ramdas namely Gulabbai (applicant), respondent No. 3 Deenbandhu and respondent No. 2 Jagatbandhu.

3. Subsequently, respondent No. 2 Jagatbandhu got his name entered in Nazul records and thereafter entered into an agreement for sale of the aforesaid property with respondent No. 1 Vijay. When applicant Gulabbai came to know about the aforesaid transaction, she filed a civil suit for declaration and injunction before Civil Judge Class II, Timarni, which is pending adjudication.

4. The suit filed by respondent No. 1 against respondent Nos. 2,3 and 4 has been decreed in Civil Suit No. 20-A/2013 in which it was ordered that respondent No. 1 is not entitled to get the sale deed executed in his favour in respect of the suit property. The suit was decreed for money part and it was ordered that the amount taken by respondent No. 2 from respondent No. 1 be refunded to respondent No. 1. It was further ordered that if respondent No.2 fails to comply with the aforesaid order, this property would be attached and would be put to auction for realisation of the amount towards decree.

5. When the applicant came to know about the attachment of the suit property i.e. Khasra No. 138/1 Nazul Sheet No. 13-A, area 135 sq. meter, Thakur Baba Ward, Opposite Narmadiya Dharamshala, Timarni, she filed an objection before the executing Court contending that as she is the owner of one third share in the undivided property, which has been ordered to be attached, the property cannot be put to auction or cannot be attached in any manner unless there is a partition affected among co-sharer.

6. The objection filed by the applicant has been rejected vide impugned order and it has been ordered that the house in question be auctioned and the necessary steps be taken. Being aggrieved, this revision has been preferred.

7. Learned counsel for the applicant submits that the Court below has erred in rejecting the objection raised by the applicant on the ground that judgment debtor has supported the case of the decree holder in respect of the property in question while contending that the suit property was given in the share of the judgment debtor and the partition has already taken place whereas no proof of partition has been furnished by the judgment debtor to show as to how the property was partitioned and whether any share was given to the present petitioner or not? The Court below ought to have conducted an enquiry in respect of so-called partition. The Court below has totally ignored the provision of law and has erred in arriving at an erroneous conclusion, therefore, the impugned order may be set aside.

8. Learned counsel for respondent No. 1 has supported the impugned order and prayed for dismissal of this revision.

9. Learned Court below while passing the impugned order has observed that according to the applicant she is the daughter of late Rameshwardas and the plot on which the house in question is built was purchased by her father Rameshwardas and there was no partition between her and the brothers. It has been further observed that it is clear that the judgement-debtor has expressed that the above plot was actually given to the judgment-debtor by Late Rameshwar and since then, he continues