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Judgment
6 paragraphs · 389 wordsJ.V. Gupta, ACJ
This revision petition is directed against the order of the executing Court dated August 26,1989, whereby the objections filed by the guarantor Lachhman Singh were accepted. The objection petition has been accepted primarily on the ground that the said guarantor Lachhman Singh was not a party to the decree which was sought to be executed against him and neither he was ever present in the suit in which the said decree was passed.
The learned counsel for the petitioner submitted that this finding has been given without framing any issue and without affording any opportunity to lead any evidence in this behalf.
The learned counsel for the respondent judgment debtor submitted that the decree as such was not executable even according to the compromise. Exhibit CX and, therefore, there was nothing wrong or illegal in the impugned order.
After hearing the learned counsel for the parties, I am of the considered opinion that the objection petition could not be decided summarily without framing any issue and allowing the parties to lead evidence. Whether the guarantor Lachhman Singh was present in the suit in which the decree was passed or not is a question of fact which could be decided only after the parties were allowed to lead evidence and whether the decree was executable in view of the compromise of not, against, requires to be determined after framing the necessary issues. It was also brought to the notice of this Court on behalf of the respondents that meanwhile the petitioner decree-holder has also filed a civil suit against the guarantor Lachhman Singh and, therefore, according to the learned counsel, the decree as such was not executable. However, all these objections can be raised before the executing Court and no finding can be given at this stage as that was never the objection raised earlier.
Under the circumstances, the petition succeeds. The impugned order is set aside and the executing Court is directed to decide the objection petition after framing the necessary issues and allowing the parties to lead evidence. In order to expedite the hearing, it is directed that the parties will lead evidence at their responsibility for which one opportunity be given to each of them. The parties have been directed to appear in the executing Court on April 18,1990.