1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CIVIL WRIT PETITION NO.590/2009. M/s.V.M.Marbles Pvt. Ltd. VERSUS Nitesh Kumar and Others. 04.03.2009. HON'BLE MR.JUSTICE DALIP SINGH Mr.Rajesh Sharma, for the petitioner. Mr.Vinodi Lal Mathur, for the respondent. ***** This writ petition has been preferred challenging the order dated 05.01.2009 (Annexure-20) by which the learned executing court has dismissed the objection filed by the petitioner with regard to the attachment of the goods lying on the disputed premises in respect of which the respondent No.1 has a decree for eviction and arrears of rent against the non-petitioner No.2 Kanaram. In execution of the decree when the Nazir of the court proceeded to deliver the possession, the petitioner objected to the delivery of the possession and execution of the decree alleging that he was in possession of the same and his goods which are marble slabs were lying on the premises in dispute. An application under Order 21 Rule 97 C.P.C. also came to be filed by the petitioner and the learned executing court after considering the matter with regard to the goods lying on the disputed premises 2 vide order dated 16.06.2006 disposed of the objections by handing over the goods on superdigi on surety of Rs.4,00,000/- which was assured as the value thereof. Thereafter, proceedings under Order 21 Rule 58 C.P.C. were initiated in the execution of the decree where the petitioner again filed his objections that the goods do not belong to the judgment debtor but in fact belong to him and, therefore, they ought not to be attached and put to auction. The learned executing court having taken into consideration the affidavits produced by both the sides came to the conclusion that the petitioner objector was not able to prove that the goods which were found on the disputed premises and which were handed over on superdigi were of his ownership and, therefore, ordered that the said goods be put to auction in execution of the decree against Kanaram-defendant- judgment debtor. It is the aforesaid order dated 05.01.2009 by which the objections filed by the petitioner were dismissed and is being challenged before this court in this writ petition. Notices were ordered to be issued to the opposite parties and after issuing the notices, the matter has been heard today. During the course of hearing, learned counsel for the petitioner-objector submitted that the goods were given on superdigi on furnishing a surety of Rs.4,00,000/- towards the value of goods. Learned counsel for the petitioner-objector submitted that the petitioner would be willing to 3 deposit the amount of Rs.4,00,000/-, the value of the goods ascertained by the learned executing court. It is submitted that the goods may be handed over to the petitioner on the deposit of the aforesaid amount of Rs.4,00,000/- which may be adjusted against the satisfaction of the decree passed against Kanaram. Learned counsel submitted that it may be left open for the petitioner objector to seek recourse to any remedy under the law for recovery of this amount against Kanaram, since Kanaram has filed an affidavit and has submitted that the goods belong to the petitioner. Learned counsel for the respondent No.1/decree holder has accepted the aforesaid proposal of the learned counsel for the petitioner that in case the petitioner deposits an amount of Rs.4,00,000/-, the value ascertained by the learned executing court while handing over the goods on superdigi, the same may be paid to the respondent No.1 against the satisfaction of the decree passed against Kanaram, respondent No.2, the petitioner would have no objection, leaving the respondent No.1 with a right to recover the remaining amount under the decree against Kanaram. In the facts and circumstances, therefore, this petition is disposed of as follows:- 1. In the event the petitioner deposits an amount of Rs.4,00,000/- within a period of four weeks from today with the learned executing court to be paid to the respondent-decree holder towards the partial 4 satisfaction of decree against Kanaram, the goods given on superdigi may be handed over to the petitioner. 2. In case the petitioner fails to deposit the aforesaid amount within the time, as aforesaid, the respondent No.1 would be free to seek the assistance of the executing court for the auction sale of the goods in question for realization of the amount towards the satisfaction of the decree. 3. In case the decree is not satisfied against the aforesaid amount of Rs.4,00,000/- or such amount that may be received by the executing court upon the auction of the said goods in the event of the petitioner not depositing the amount of Rs.4,00,000/-, the respondent No.1 shall be free to proceed against the judgment debtor for the recovery of the decreetal amount under decree by auction of the goods (marble slabs etc.) and the property of the judgment debtor. 4. The petitioner objector would have a right to proceed against Kanaram, the judgment debtor for recovery of any amount which he considers to have been paid towards the satisfaction of the decree against Kanaram in accordance with law. In view of the above, the actual physical possession of the premises in dispute, if not already handed over to the decree holder, may be handed over to the decree holder upon the removal of the goods. 5 Consequently, the writ petition as well as the stay application stand disposed of, as agreed. There shall be no order as to costs. (DALIP SINGH),J. Solanki DS, Jr.P.A.