1.0 Present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the petitioner hereinoriginal plaintiff decree holder to quash and set aside the impugned order passed by the learned Executing Court learned 5th Joint Civil Judge (S.D.), Junagadh passed in Regular Execution Application No.206 of 2002 rejecting the said Execution Application.
2.0 That the petitioner herein original plaintiff instituted Special Civil Suit No. 4 of 1991 against the respondent herein original defendant in the Court of learned Civil Judge (S.D.), Junagadh for specific performance of the registered agreement to sell / Santakhat dated 8.1.1988 with respect to the suit land. That the suit proceeded exparte as nobody remained present on behalf of original defendant and by judgment and decree dated 30.6.2001 the learned trial Court learned 5th Joint Civil Judge (S.D.), Junagadh decreed the suit and passed the decree for specific performance of the registered Santakhat / agreement to sell dated 8.1.1988 directing the defendant to execute the sale deed on receiving Rs. 50,000/ from the plaintiff towards balance sale consideration and to handover the peaceful and vacant possession of the suit land to the plaintiff. That the judgment and decree passed by the learned trial Court has attained the finality and the same has not been challenged by the original defendant.
2.1. That thereafter, the petitioner herein original plaintiff judgment creditor filed Regular Execution Petition No.206 of 2002 before the learned Executing Court to execute the judgment and decree passed by the learned trial Court passed in Special Civil Suit No. 4 of 1991. That in the said suit, the respondent herein original defendant judgment debtor submitted the objection under Section 47 of the Code of Civil Procedure by filing objection at Exh.10 objecting to the execution of the decree submitting that the agreement to sell was with respect to the agriculture land and the plaintiff is non agriculturist, the specific performance of the agreement to sell with respect to the agriculture land is barred and therefore, the decree passed by the learned trial Court which is sought to be executed is nullity and without jurisdiction. It appears that as such the petitioner produced number of documentary evidence produced along with list at Exh.11 mark 11/1 to 11/5 to show that at the relevant time when the judgment and decree was passed by the learned trial Court he was holding the agricultural land. It appears that despite the above and without considering the document produced by the petitioner produced along with list at Exh.11, the learned Executing Court has dismissed the Execution Petition No. 206 of 2002 and refused to execute the decree passed in Special Civil Suit No. 4 of 1991 mainly on the ground that decree which is sought to be executed is not executable as agreement to sell with respect to agricultural land was barred under law and it is not proved that the plaintiff judgment creditor was at the relevant time agriculturist and consequently learned Executing Court dismissed the said Execution Petition.
2.2. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned 5th Joint Civil Judge (S.D.), Junagadh dated 17.3.2004 passed in Regular Execution Petition No.206 of 2004, the petitioner herein original plaintiff judgment creditor has preferred present Civil Revision Application under Section 115 of the Code of Civil Procedure.
3.0 Shri Mehul Shah, learned advocate for the petitioner has vehemently submitted that as such learned Executing Court has materially erred in rejecting / dismissing the Execution Petition on the ground that the decree which is sought to be executed is nonexecutable as agreement to sell was with respect to the agricultural land and sale in favour of the non agriculturist is barred under the provision of of Bombay Tenancy and Agriculture Land Act. It is submitted that as such at the relevant time when the decree was passed by the learned trial Court the petitionerplaintiff was agriculturist and was holding the agricultural land and to substantiate the same documentary evidence was also produced along with list at Exh.11 i.e. mark 11/1 to 11/5. However, the learned Executing Court has not dealt with and / or considered those documents at all and without considering the those documents which would go to show that at the relevant time when the decree was passed the plaintiff was the agriculturist. It is submitted that even those documents would have been considered by the learned Executing Court, the learned Executing Court would not have dismissed the execution petition. Therefore, it is requested to quash and set aside the impugned order passed by the learned Executing Court dismissing the execution petition and considered the document produced along with list at Exh.11 and remanded the matter to the learned Executing Court to pass appropriate order afresh after considering the document produced along with list at Exh.11 i.e. mark 11/1 to 11/5 by accepting the same in accordance with law.
4.0 Though served, nobody appears on behalf of the respondent.
5.0 Heard Shri Mehul Shah, learned advocate for the petitioner hereinoriginal judgment creditor and considered the impugned order passed by the learned Executing Court dismissing the Execution Petition and even considered the documentary evidence on record from the Record and Proceedings received from the Executing Court. Considering the impugned order passed by the learned Executing Court, it appears that the learned Executing Court has dismissed the Execution Petition mainly on the ground that decree which is sought to be executed is nonexecutable as decree for specific performance of the agreement to sell is with respect to agricultural land and sale in favour of the non agriculturist is barred under the provision Bombay Tenancy Act. However, the learned Executing Court has not considered the documents produced by the petitioner herein produced along with list at Exh.11 i.e. mark 11/1 to 11/5. Relying upon the aforesaid document, it is the case of the petitioner that at the relevant time when the judgment and decree was passed by the learned Executing Court in fact he was agriculturist. Considering the impugned order passed by the learned Executing Court, it appears that the learned Executing Court has not considered document produced along with list at Exh.11 i.e. mark 11/1 to 11/5 and without even passing any order whether the said documents are required to be accepted or not as proceeded further with the execution petition and has dismissed the execution petition. It appears that when the petitioner produced the document mark 11/1 to 11/5 along list at Exh.11 the same was objected by the respondent herein and therefore, the same were not accepted, however thereafter there is no further decision by the learned Executing Court whether to accept or not the said documents even considering the objections raised by the respondent herein. The learned Executing Court as such was required to deal with those objection submitted at Exh.12 and was required to take a decision whether document produced along with list at Exh.11 are required to be accepted or not and thereafter he comes to the conclusion that the same are accepted and same were required to be considered by the learned Executing Court. The aforesaid procedure has not been followed at all and learned Executing Court has dismissed the Executing Petition on the ground stated hereinabove which cannot be sustained and the same deserves to be quashed and set aside and matter is remanded to the learned Executing Court to decide Execution Petition afresh in accordance with law and on merits and after taking appropriate decision on the application at Exh.11 i.e. whether to accept the document produced along with list at Exh.11 or not considering the objection submitted at Exh.12 and thereafter to take appropriate decision in accordance with law and on merits.
6.0 In view of the above and for the reasons stated above, present Civil Revision Application succeed in part. The impugned order passed by earned Executing Court learned 5th Joint Civil Judge (S.D.), Junagadh passed in Regular Execution Application No.206 of 2002 dated 17.3.2004 is hereby quashed and set aside the and the matter is remanded to the learned Executing Court to decide the said Execution Petition afresh in accordance with law and on merits and after passing appropriate order whether document produced along with list at Exh.11 i.e. document produced at mark 11/1 to 11/5 are to be executed or not executed or not (considering the objection submitted at Exh.12) and thereafter to consider the same in accordance with law and on merits. The aforesaid exercise shall be be completed within a period of six months from the date of receipt of the present order. Rule is made absolute to the aforesaid extent. No costs. Registry is directed to return the Record and Proceedings of the Execution Petition to the learned Executing Court immediately.
“kaushik”
sd/ ( M. R. Shah, J. )