Darshan Singh and Anr v. M/s Capital Land Builder Pvt. Ltd

1. Exemption is allowed, subject to all just exceptions. CM APPL. 13662/2023 (Exemption)

2. Application stands disposed of.

3. This is an application filed under Section 151 CPC, 1908 on behalf of respondent seeking directions to dispose of the present Execution First Appeal by setting aside the order dated 02.09.2022 by concession to the prayer made by the appellant in the present appeal in respect of the order dated 02.09.2022. EX.F.A. 7/2023 & CM APPL. 13661/2023 (Direction)

4. Though the present appeal is listed for consideration on 19.09.2023, however, by way of the present application, the EX.F.A. 7/2023 2 applicant/respondent is seeking the aforesaid directions so as to ensure that the delay in execution proceedings is avoided.

5. Learned counsel appearing for the respondent/applicant submits that the respondent has no objection in case the impugned order dated 02.09.2022 is set aside and the appeal be decided afresh from the stage prior to the passing of the impugned order dated 02.09.2022.

6. Issue notice.

7. Notice is accepted by learned counsel appearing for the appellant/non-applicant.

8. Learned counsel appearing for the appellant submits that he has no objection in case the present application is allowed and the impugned order dated 02.09.2022 is set aside, however, he requests that the interest of appellant be taken note of.

9. This Court has considered the issue which has arisen in the present case and after careful consideration as also the concession given by the applicant/respondent, this Court is of the opinion that the order dated 02.09.2022 of the Executing Court be set aside along with all the subsequent proceedings taken by the executing Court in terms of the order dated 01.03.2023 passed by this Court.

10. Learned counsel appearing for the appellant hands over the order dated 02.03.2023 passed by the learned Executing Court in Execution Petition 123/2020 to submit that despite the order dated 01.03.2023 passed by this Court, the Executing Court proceeded with the execution proceedings. It is noted from the order dated 02.03.2023 of the executing court, that the learned Executing Court was not apprised by either of the parties about the order passed by this Court on 01.03.2023. EX.F.A. 7/2023 3 It appears that in such circumstances, the learned Executing Court has proceeded with the execution.

11. Be that as it may, the present appeal is taken up for disposal with the consent of the parties and in terms of the concession made by the learned counsel appearing for the applicant/respondent in the aforesaid application.

12. In view of the aforesaid, the impugned order dated 02.09.2022 is set aside and the learned Executing Court is directed to commence the execution proceedings as obtaining before 02.09.2022.

13. Learned counsel appearing for the appellant seeks and is granted two weeks time to file his objections from today. Learned Executing Court shall take objections, if filed, on record and decide the same in accordance with law expeditiously.

14. It is made clear that the time of two weeks, w.e.f. today, to file objections will not be extended under any circumstances.

15. No coercive steps would be undertaken by the executing court till the decision on the objections, if filed, by the appellant is taken by the learned Executing Court.