Heard Sri J.S. Pandey, learned counsel for the petitioner and Sri Madhav Jain, learned counsel for respondent.
Respondent filed a suit for specific performance which was decreed and the defendant petitioner was directed to execute the sale deed in pursuance to the agreement, failing which the deed was to be executed by the court at the expenses of the defendant. The decree was put to execution, which was registered as execution case no. 6 of 2003. The executing court prepared a draft sale deed and sent it by registered post to the petitioner, which was returned back with the remark 'refused to accept'. Executing court assuming the service to be sufficient on the defendantpetitioner executed the sale deed in favour of the plaintiffrespondent on 1.4.2008. It was thereafter the petitioner moved an application dated 4.4.2008 to recall the order dated 24.11.2006 treating the service as sufficient and also to recall and cancel the sale deed executed on 1.4.2008. He also filed objection under Section 47 C.P.C. which was countered by the defendantrespondent on the ground that the same does not bear the signature of the petitioner Om Prakash but his signature has been forged by his brother Gopal Singh who was throughout doing 'Pairvi' in the case. A prayer was also made that the signature made on the said document may be got examined by a hand writing expert to ascertain the genuineness of the same. The executing court finding that on one of the date i.e. 21.8.2009 the petitioner Om Prakash who had appeared in pursuance to the summons for personal presence, had put his signatures in the order sheet and the same are entirely different from the signatures made on the application and objection, passed an order directing the petitioner Om Prakash to appear on 30.10.2009 to give his specimen signature so that the same could be compared with his signatures on the application and objection on his behalf by a hand writing expert. Aggrieved by the same, the petitioner went up in revision which has been dismissed as not maintainable being directed against an interlocutory order. It has been urged by learned counsel for the petitioner that the execution case was not filed with clean hands and the defendant petitioner had filed Second Appeal before this Court. It has further been submitted that the service was wrongly deemed to be sufficient and in view of the proviso of Order 21 Rule 34(2), the service on the judgement debtor is necessary.
In reply, it has been submitted by learned counsel for the respondent that after execution of the sale deed by the executing court and before the same could be delivered to the plaintiffdecree holder, the brother of the defendantjudgement debtor moved the recall application and objection making his forged signatures and thus the court below rightly directed the petitionerjudgement debtor to appear in person to give his specimen signatures.
I have considered the argument advanced by learned counsel for the parties and perused the record.
The executing court has only directed the petitionerjudgement debtor to appear in person to give his specimen signature as not only the genuineness of the signatures on the recall application and the objection under Section 47 were being disputed by the respondent decree holder but the court itself found that his signatures on various papers were entirely different.
In view of the aforesaid findings, no illegality appears to have been committed by the executing court in directing the petitioner judgement debtor to appear and give his specimen signatures. Revision filed against the said order has also rightly been dismissed as not maintainable inasmuch as it was directed against an interlocutory order.
In view of above, there is no scope of interference in the impugned orders by this Court.
The writ petition stands dismissed.
Order Date :- 12.1.2010 nd