CRA 191/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 191/2010 Laxmibai W/o Vithalreddy Atle, Age : Major, Occu. Agri. & Household, R/o Manoor, Tq. Degloor, Dist. Nanded. ...Applicant. Versus 1 Vithalreddy s/o Irreddy Atle, Age : Major, Occu. Agri., R/o Manoor, Tq. Degloor, Dist. Nanded. 2 Sopanrao s/o Ganpatrao, Age : Major, Ocu. Agri., R/o Manoor, Tq. Degloor, Dist. Nanded. ...Respondents. Shri S.V. Kurundkar, Advocate for applicant. Shri V.D. Gunale, Advocate for respondent no.2. CORAM : A.V. NIRGUDE, J Date : 15th February, 2011. ORAL JUDGMENT:- 1 This revision is filed against the order dated 10/04/2000 passed by Civil Judge,(Junior Division), Degloor in Regular Darkhast No. 47/1990. The revision applicant/ the Decree holder had initiated the regular darkhast. It is common ground that the applicant obtained a decree against her husband for maintenance and while granting such decree, the Civil Court put charge on certain properties belonging to the husband. The regular darkhast was initiated on the ground that the husband had not paid the maintenance and in order to CRA 191/2010 2 recover arrears of maintenance, the property charged should be put to sale. 2. The respondent appeared before execution court with an objection. He stated in his application that he had purchased the property -which was charged- from the applicant’s husband. He even said that when the property was sold in his favour, the applicant decree holder gave her consent for such sale. He then contended that after sale of the property, the decree holder and her husband collected sizable amount and have started residing together as husband and wife. He thereby suggested that the execution proceeding was a mischievous act. 3. As against this, it appears, the applicant decree holder did not file any reply to explain her stand in respect of the alleged consent she had given for the sale of the land. Because of her silence on such allegations, the learned judge hastily drew a conclusion that the property now in execution can not be put to sale. This order is essentially challenged under this revision. 4. The learned judge clearly erred in ignoring the provisions of Section 47 read with Order XXI Rule 97 of the Code of Civil Procedure. In this case a purchaser who is interested in obstructing the execution of the decree has come before the execution Court. The question that arose between him and the decree holder should be decided as per the procedure prescribed under Order XXI Rule 101 of the Code of Civil Procedure. This was not done and so the order cannot be said to be lawful. I am remanding the case back to the lower court with a liberty to the decree holder to file a written statement. After filing such written statement, the learned judge of the execution Court shall frame issues and then decide the issues on the CRA 191/2010 3 basis of evidence that he would record if required. ORDER a) The revision is allowed. b) The Darkhast is revived. c) The impugned order dated 10/04/2000 passed by Civil Judge, (Junior Division), Degloor in Regular Darkhast No. 47/1990 is set aside. d) The case is remanded back to the execution court. e) As indicated above, the decree holder may file written statement against the application Ex. 218. f) The lower court shall frame issues and decide the application as per procedure laid down under Rule 101 of Order XXI of the Code of Civil Procedure. [A.V. NIRGUDE, J.] ts k/ok