CW 5908/99 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.5908/99 Smt. Usha Devi & Ors. Versus State of Rajasthan DATE OF ORDER : 07/07/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Mahendra Goyal, for petitioner Mr. Nalin G. Narain Dy.Govt. Counsel, for respondents *** Instant petition has been jointly filed by petitioners assailing order Ann.6 dt.28th January, 1997 and so also attachment warrant which was issued to them in compliance of Ann.6 dt.28th January, 1997. It has been alleged by petitioners that they are having ancestral properties comprising of residential house & commercial shops in town Jhalarapatan. A release deed dt.18th August, 1989 was executed by petitioner in favour of non- petitioner Nos.4 to 6 which was registered by Sub-Registrar, Jhalarapatan as on 18th August, 1989. After audit objection was raised in the office of Comptroller & Auditor General, Rajasthan as to the nature of release deed on which a case bearing No.483/92 was registered. But after adjudication, it was held vide order dt.01/01/92 (Ann.2) to be a release deed and not CW 5908/99 [2] a partition deed as claimed by the department. As such, no additional stamp duty was payable. As alleged by petitioner, a unilateral release deed dt.6th October, 1990 was registered by the respondents Dinesh Kumar, Ram Gopal & Nand Kishore S/o Late Shri Kanhaiyalal which was considered by Sub-Registrar [Stamps] as a gift deed and accordingly, issued a notice U/s 47-C(1) for demanding additional stamp duty to Dinesh Kumar, Ram Gopal & Nand Kishore. But, as alleged by petitioner it was unilateral release deed executed and after affording opportunity to them, the Collector [Stamps] finally held that it was a gift deed and accordingly, warrant of attachment indeed was served and opportunities were afforded to them. It appears from the record that later on notice of attachment was issued to the petitioner also as is evident from document Ann.3 and immediately after notices were served upon them, application was filed by petitioners U/O 9 R.13 CPC since opportunity of hearing was not afforded to them before warrant of attachment was issued in pursuance of order dt.28th January, 1997 [Ann.6]. At this stage, petitioners approached this Court by filing instant petition and while issuing notice to the respondents on 19th CW 5908/99 [3] November, 1999, recovery proceedings qua petitioner was stayed by this Court. It has been specifically averred by petitioners in Para 7 of the writ petition that respondents initiated proceedings for attachment in pursuance of notice Ann.3 - at the same time, application was filed by them U/O 9, R.13 CPC which remain pending and that has caused prejudice to them since it was alleged that opportunity of hearing was not afforded by the authority before warrant of attachment was issued to them. In the reply filed by the respondents, a vague averment has been made in Para 7 that notice was served and opportunity was available with the petitioners to file a revision under R.73 of Rajasthan Stamps Rules, 1955 before Chief Comptrolling Revenue Authority namely; the Board of Revenue. But this fact remained uncontroverted that what happens to the fate of application filed by petitioner before the authority U/O 9 R.13 CPC for setting aside ex-parte proceedings as alleged initiated against them. CW 5908/99 [4] Counsel for petitioner informs this court that application filed by petitioner U/O 9 R.13 CPC is still pending and no orders have been passed by the authority so far. Counsel for petitioner has made further submission raising ground for assailing order Ann.6 which infact made to be a basis for warrant of attachment being issued. But, in opinion of this Court, since the application filed by petitioner U/O 9 R.13 CPC is still pending before the authority, it will not be appropriate for this Court to examine other submissions which the petitioner has made assailing order Ann.6 on merit at this stage. However, at the same time, this Court considers appropriate that application filed by petitioner U/O 9, R.13, CPC may be examined by the authority and after affording opportunity, order may be passed in accordance with law. Counsel for petitioner submits that since proceedings have been stayed, the same may not be allowed to be executed any further pending application filed U/O 9 R.13 CPC which appears to be reasonable also. CW 5908/99 [5] Consequently, writ petition stands partly allowed with the direction to the respondents to consider application filed U/O 9, R.13, CPC by petitioners after affording opportunity of hearing to the parties. Pending application, further proceedings initiated in pursuance of Ann.6 in Case No.916/92 dt.28th January, 1997 qua petitioners shall remain suspended. However, the authority will be free to pass order on their application U/O 9, R.13, CPC, and proceed further in accordance with law. Since it is an old matter, parties are directed to appear before the authority on 10th August, 2009. No order as to costs. [AJAY RASTOGI], J. FRBOHRA5908CW99 7-7.doc