NITIN AGARWAL vs STATE OF M P AND ANOTHER

This first appeal under Section 96 read with Order 21 Rule 103 C.P.C has been preferred by the appellant/judgment debtor assailing the order

dated 20.06.2015 passed by the 2nd A.D.J, Jabalpur in Ex. No. 87A/2004 x 14 wherein the application under Order 21 Rule 97 and Order 21

Rule 29 of the C.P.C were disallowed by the Executing Court.

Brief facts just necessary for disposal of this appeal are that Civil Suit No. 87A/2004 was filed by the respondent/plaintiff before the 6th A.D.J,

Jabalpur which was decided on 15.02.2005 wherein the civil suit seeking relief of specific performance of contract was dismissed. The

plaintiff/respondent (in the present case) preferred First Appeal No. 519/2005 in which the Division Bench of this Court has allowed the appeal

F.A No. 621 of 2015 filed by the plaintiffs and set aside the decree passed by the trial Court and the claim of the plaintiffs has been decreed with

cost.

Subsequently, Ex. No. 87A/2004 x14 pending before the 2nd A.D.J, Jabalpur has been filed, which is in progress. In the said execution case,

the appellant (in the present case)/defendant filed two applications one under Order 21 Rule 97 and the other under Order 21 Rule 29 of C.P.C

and prayed for not to proceed with the execution on the ground that the decree has been obtained by the plaintiffs with misrepresenting the facts,

hence, the said judgment/decree or order passed by the first appellate Court be treated as nullity.

The learned executing Court vide order impugned dated 20.06.2015 passed in Ex. No. 87A/2004 x 14 has expressed its inability to allow the

application on the ground that judgment debtor/defendant, if aggrieved, could have preferred second appeal before the appropriate Court. But he

has not done so. Therefore, the execution cannot be stayed for the executing Court has to execute the decree in its later and spirit.

The second objection raised by the appellant (in the present case)/defendant is that the conditions imposed in the sale deed could not have been

imposed for there was clause of ""re-purchase"" of the property, which is violative of Sections 10, 11 of the Transfer of Property Act and Article

300- A of the Constitution of India. Hence, the decree passed by the Division Bench of this High Court on 05.12.2013 has been obtained by the

plaintiffs/decree holder, is a nullity and non-est in the eyes of law.

The same has also been disposed, by the order impugned. The executing Court observed that the objection raised by the judgment debtor

cannot be sustained, therefore, proceeding cannot be stayed.

Aggrieved by this common order, the appellant (in the present case)/defendant has preferred this appeal under Section 96 read with Order 21

Rule 103 of the C.P.C on the ground that the impugned order is without application of mind. The appellant claimed that there is violation of

Sections 10, 11 of the Transfer of Property Act as well as read with Section 300- A of the Constitution of India and also proceeded to request

this Court to treat the judgment and decree dated 05.12.2013 passed by the Division Bench of this Court as a nullity and to set aside the order

impugned dated 20.06.2015.

Considered the above. Had the appellant/defendant aggrieved by the judgment and decree passed by the Division Bench of this Court in First

Appeal No. 519/2005 dated 05.12.2013, he could have preferred a second appeal before the competent Court. I do not see any impropriety,

illegality or irregularity in the order impugned. Therefore, this appeal is dismissed.