SB CIVIL EXE. SECOND APPEAL NO. 6/11.

Suresh Kumar Soni Vs. Ramesh Chand Jain

1

IN THE HIGH COURT OF JUDICATURE FOR

RAJASTHAN BENCH AT JAIPUR

SB CIVIL EXECUTION SECOND APPEAL NO.6/11.

SURESH KUMAR SONI – APPELLANT.

VS

RAMESH CHAND JAIN – RESPONDENT.

DATE OF JUDGMENT :

6TH SEPTEMBER, 2012.

PRESENT

HON'BLE MS. JUSTICE BELA M. TRIVEDI

Mr. M.M. Ranjan, Sr. Advocate with

Mr. Ribhu Dutt for the appellant.

Mr. Sudesh Bansal for the respondent.

JUDGMENT

BY THE COURT :

1.

The present second appeal filed under

Section 100 of CPC, by the appellant-

objector arises out of the judgment and

decree dated 8.4.11 passed by the

District Judge, Jaipur District, Jaipur

(hereinafter referred to as 'the

appellate court') in Civil Appeal No.

18/09, whereby the appellate court has

confirmed the judgment and decree dated

30.1.09 passed by the Civil Judge, Jr.

Division, Sanganer, District Jaipur

(hereinafter referred to as 'the

executing court') in the Execution Case

No. 7/07.

2.

Before proceeding further on the merits

of the appeal, it may be stated that

SB CIVIL EXE. SECOND APPEAL NO. 6/11.

Suresh Kumar Soni Vs. Ramesh Chand Jain

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during the courts of arguments, the

learned counsel Mr. Sudesh Bansal for

the respondent-decree-holder had drawn

the attention of the court that the

appellant-objector had also filed an

application under Section 47 of CPC

before the executing court, though his

application under Order XXI Rule 97 of

CPC raising same objections against the

execution of the decree in question was

pending.

3.

The learned Sr. counsel Mr. M.M. Ranjan

for the appellant, in view of the said

submission made by the learned counsel

Mr. Sudesh Bansal for the respondent,

submitted an application dated 5.9.12

seeking permission to withdraw the

present appeal. However, the learned

counsel for the respondent has raised

the objection against permitting the

appellant to withdraw the appeal, by

filing the reply dated 6.9.12. It has

been contended interalia that the

application under Section 47 of CPC

filed by the appellant-objector was not

maintainable and that the present

appeal, which arises out of the order

SB CIVIL EXE. SECOND APPEAL NO. 6/11.

Suresh Kumar Soni Vs. Ramesh Chand Jain

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passed by the executing court on the

application filed under Order XXI Rule

97 of CPC, is pending since last more

than one year, and in which the interim

order was also granted by the court,

which had adversely effected the

respondents. The court, therefore,

considering the objections raised by

the learned counsel Mr. Bansal for the

respondent, did not permit the learned

counsel for the appellant to withdraw

the present appeal and directed him to

make his submissions on the merits of

the appeal.

4.

So far as the merits of the appeal are

concerned, it appears that initially

the respondent-original plaintiff had

filed the suit being No. 509/96 against

one Ashok Kumar and others-original

defendants seeking demolition of the

construction raised on plot No. 208 and

for possession of the said plot. It

was alleged in the said suit that the

plaintiff was the owner of the plot

No.208, purchased by him from one

Krishna Bihari, through a registered

sale-deed dated 10.4.85, and that the

SB CIVIL EXE. SECOND APPEAL NO. 6/11.

Suresh Kumar Soni Vs. Ramesh Chand Jain

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said Krishna Bihari had purchased the

said plot in an auction sale held by

the Gram Panchayat, Bhankrota. It was

also alleged that the said defendant

Ashok Kumar had encroached upon the

plot No. 208 belonging to the plaintiff

and had raised illegal construction

thereon. In the said suit the defendant

Ashok Kumar had filed the written

statement denying the allegations made

in the plaint and further contending

interalia that he had purchased the

plot No. 209 from Gram Panchayat,

Bhankrota and had put up const