1 C.R.No.23/06 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. CIVIL REVISION PETITION NO.23/06 State & Ors. Vs. Suwa Lal Yadav & Anr. DATE OF ORDER :: 04/12/2006 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. S.N. Gupta, Dy.G.A., for petitioner Mr. Prahlad Singh, for respondent *** Instant revision petition has been filed by the judgment-debtor-petitioner against the order dated 10th February, 2006 passed by the learned Executing Court whereby the objections which were submitted by the petitioner u/s.47 of Civil Procedure Code were rejected and the execution proceedings were initiated further. The non-petitioner-decree-holder filed a suit with regard to her dues and she claimed that she is entitled to get pension as payable to her brother-in- law [देवर]. Learned trial Judge after adjudication of the dispute passed the judgment and decree in favour of non-petitioner-decree-holder on 11th August, 1995. The extract of the decree is reproduced as under: "वाद वािदनी बाबत घोषणा× मक िडबी िकया जाकर (1) ूितवादी सÉ ंया 4 को आदेश हɇ िक िदनांक 5.8.58 से 1.5.71 तक बढी हईु पेंशन रािश का भुगतान वािदनी को करे तथा उसमें से जो 1600/ Ǿपये का भुगतान वािदनी को िकया है वो कम कर ले (2) ूितवादी सÉ ंया 1 से 3 को आदेश हɇ िक 1.5.71 से वािदनी को वािदनी के 2 C.R.No.23/06 देवर की पेंशन मुतािबक भुगतान करे परन् तु यिद वािदनी न् यायालय के जिरऐ भुगतान ूाप् त करती है तो उसे अितिरक् त न् याय शुल् क अदा करना होगा। जहां तक राजमहल में जेवरात आिद का ूँ न है इसका ना तो िविँ ं ठ िववरण है तथा ना ही इसकी कीमत िनधार्िरत करके न् यायालय शुल् क अदा िकया गया है इसिलए इस संबंध में कोई आदेश नहीं िदया जा सकता है। वाद व् यय उभयप्ष अपना-2 वहन करेंगें।" Since it was an ex-parte decree passed by the learned trial Judge, the separate suit was filed for cancellation of ex-parte decree passed against them which too was dismissed on 3rd March, 2006. The decree- holder, thereafter, filed application for execution of the decree dated 11th August, 1995. Since it was not made clear as to what is the actual amount of pension which was payable to her and the learned trial Judge only observed that she will be entitled for pension for the period from 5th August, 1958 to 1st May, 1971 after deducting Rs.1600/- from the computed amount which was payable by defendant No.4 and after 1st May, 1971 she was entitled for pension which was to be paid by defendant Nos.1 & 3 as admissible to her brother- in-law [देवर]. Before the Executing Court since there was no statement came on record about the actual pension paid to her brother-in-law [देवर] at the stage of execution the judgment-debtor filed their objection u/s.47 of CPC and also the statement of pension paid to her brother-in-law [देवर] which has also been placed along with the present revision petition without taking note of the factual statement which has come on record duly verified by the Officer In-charge the same was not 3 C.R.No.23/06 taken note of by the learned Executing Court and the objection was rejected which has been assailed by filing the present revision petition. Counsel for petitioner submits that there was no mention about the actual payment towards pension paid to her brother-in-law [देवर] as such they filed the statement before the Executing Court which has not been taken note of and the observation which has been made in the judgment and decree of the learned trial Judge cannot be considered at its face value for execution and despite objection raised, the same has been rejected by the learned Executing Court in arbitrary manner. Counsel for respondent decree-holder while supporting the order impugned dated 10th February, 2006 submits that once the decree remains ex-parte and a specific observation has been made in the judgment that certainly has to be looked into for the purpose of making payment of pension. When the matter came before this court, the counsel for respondent Shri Prahlad Singh was granted time to examine as to whether the statement which has been submitted on record with regard to actual payment made to her brother-in-law [देवर] tally with the material which is available with them or there is any objection in this regard despite opportunity no objection has come forward in relation to statement which the petitioner has placed on record. It has also been informed that in view of order of this court dated 23rd March, 2006 50% of the amount calculated as per Schedule I of total sum of Rs.74,860.68 has already been deposited by the petitioner before the 4 C.R.No.23/06 learned Executing Court. It has also been informed that during pendency of the proceedings before the trial court decree-holder has expired it goes without saying that she will be entitled for pension under the judgment and decree of the learned trial Judge for the period she remains alive and since the document Schedule 'A' which is on record, is undisputed the original decree-holder remain entitled for her pensionary benefits for the period she may remain alive. Accordingly, the revision petition is disposed of with the direction that the learned Executing Court shall forthwith release 50% of the amount which has been deposited before him in terms of order dated 23rd March, 2006 and the balance upto the period decree- holder remains alive be also paid to the respondent in terms of judgment and decree within a period of further six weeks that will satisfy the judgment and decree of the learned trial Judge and the learned Executing Court after payment in terms of order made above, may dispose of the Execution Application. [AJAY RASTOGI],J. FRBOHRA,JR.P.A.