Declaratory suit & execution order
Ricky
(Querist) 09 June 2013
This query is : Resolved
In the above mentioned Declaratory Suit, the Senior Civil Judge had passed Judgment & Decree in favour of the Plaintiff, subsequently the Plaintiff had file an application for execution of Decree in the court of the same Senior Civil Judge for Eviction of the Mortgage land. Application was granted and the Execution order was passed.
The Decree-Holder, without exercising the execution order passed by the court in his favour had preferred an agreement with the Judgment-Debtor. Now in their agreement, the Decree-Holder had guaranteed that the mortgage land in the suit will not be evicted or sold to anyone. The decree-holder had also agreed to wait for payment which will be made in lieu of the said mortgage land by the judgment-debtor without any given time frame. The decree-holder in the agreement had also promised to the judgment-debtor that he will not file any suit, application for eviction in the court against the judgment-debtor.
The agreement was registered properly and notarised and produced in the aforesaid court of senior civil judge. The court had examined the agreement of the both parties and had disposed off the case.
Now, the decree-holder had file another application for restoration of execution order in another court of senior civil judge.
My humble question before the law experts of the LawyerclubIndia is, how the decree-holder application for restoration of the execution would be restored whereas they have already entered into the agreement and the earlier execution order was disposed off by the court of senior civil judge. More particularly, the judgment debtor had stand faithful in each and every terms of the agreement with the aforesaid decree holder, and there was no default from the judgment debtor side.
Your precious advice and guideline will be highly appreciated
V R SHROFF
(Expert) 09 June 2013
question: is, how the decree-holder application for restoration of the execution would be restored whereas they have already entered into the agreement and the earlier execution order was disposed off by the court of senior civil judge. More particularly, the judgment debtor had stand faithful in each and every terms of the agreement with the aforesaid decree holder, and there was no default from the judgment debtor side
ANSWER:
Once bring the facts to notice of the another Court: case will be dismissed.
prabhakar singh
(Expert) 09 June 2013
If the agreement is registered and has been brought on record in earlier execution petition which was disposed off in the light
of the agreement,THEN ANY SECOND EXECUTION CAN LIE ONLY SUBJECT TO DEFAULT OF TERMS INCORPORATED IN THE AGREEMENT OTHERWISE NOT IS MY VIEW.
Ricky
(Querist) 09 June 2013
We are very very thankful to Shri.V R Shroff Shri Prabhakar Singh for the immediate and quick response, we are enlighten by yours great message.
Thanks alot
J K Agrawal
(Expert) 09 June 2013
Dear Mr Ricky
it may be useful to you to go through order 35 Rule 14 of CPC.
No sale is possible at all even the decree exists and the plaintiff is first to file an another suit to obtain permission to sale a mortgaged property.
isn't it amazing ?
Ricky
(Querist) 10 June 2013
I really appreciate your replay and many many thanks to you for your advice and guidance. For this act of kindness, may Almighty God blessing be with you always. Thanks Agarwal-ji, Nanda-Ji, Rajendra Kumar-Ji and Raj Kumar-Ji.
