Kashiram vs Hansraj

M.C. Jain, J.—This revision petition is directed against the order of the learned Additional District Judge, No. 2, Hanumangarh dated April 5, 1980, whereby, the petitioner''s appeal was dismissed on the ground that the appeal is not maintainable.

A few facts may be noticed, which have given rise to the present revision petition.

A decree for ejectment was passed on April 16, 1973 by the learned Munsif, Hanumangarh in favour of the respondent-decree-holder Hansraj and against the petitioner-judgment-debtor Shri Kashiram and appeal was preferred against that decree in which the, parties entered into compromise on Sept. 20, 1973 and it was agreed that the petitioner shall vacate the shop by June 30, 1976.

According to the petitioner, he had already handed-over the possession of the shop to the decree-holder but the decree-holder has still maintained the execution.

4-A. The patitioner''s case is that the Rajasthan Premises (Control of Rent and Eviction) Act. 1950 (for short ''the Act1)'' was enforced in Sadul Shahar on Jan. 20, 1977 so an objection based on Section 26 of the Act was raised, which was rejected by the Executing Court by its order dated April 12, 1978.

The petitioner went in appeal but the appeal was held to be not maintainable as the petitioner''s objection was relating to executability of the decree so it fell u/s 47 of the Civil P. C.

Having heard the learned counsel for the parties, I am �f opinion that the first appellate court was right in treating the objection u/s 47 of the Civil P.C. All objections relating to the executability of the decree can be raised before the executing court u/s 47 of the Civil P.C. Objection based on Section 26 of the Act would legitimately fall: only u/s 47 of the Civil P.C. The Act does not make any provision relating to execution. For execution of the decree, the provisions of Civil P.C. will apply and so objections relating to execution would attract the provision of Section 47 of the Civil P.C. It cannot, therefore, be said that the objection is maintainable Or would lie u/s 26 of the Act. The objection based on Section 26 of the Act would lie and would be heard only u/s 47 of the Civil P.C.

In this view of the matter, I agree with the view of the learned Additional District Judge, No. 2, Hanumangarh that no appeal is maintainable. The remedy of the petitioner was only to approach this Court against the order of the executing Court by way of revision.

Thus, this revision petition has no force so it is hereby dismissed with no order as to costs.