s IN THE HIGH COURT 07 JVDlCfSVRE AT BILASPURt CHHATTISGARH) "^y „ WRIT PETITION N0. 2-&2-2--OF 2003 JSBffig|3®SiSJgg^ PETITIONER / OBJECTOR Raghunand an Pr as ad S ao > son of late Sudharam Sao> aged about 74 years» resident of Juna Bllaspur; Bilaspur,(C.G,5 V E RS US SESPONDEKTS ,s Respondents 1 & 2 orj-ginal Decree HoIder. Sudhakar Ram Sao» son of late Ayodhya Prasad Sao,(deceased) through legal heirs. ^^ '•'~^f-'~ i5,^\l. Raghuraj Sao>son of Sudharam Sao> aged about 70 years ^i; •• 2. Basant Lal» son of late Sudharam Sao» aged about {i.syears;- Both are residents of Juna Bilaspur» Bilaspur,(C.G.) ^^^" ,,.y^" BIl"put 1^^**^...'' ^ \ ^_,.^*R'ESPONDENTS 3 & 4^ 3. Ram Kumar Gupta, son of Sadhu Lal Gupta, i> JUBGEME;<rT DEBTOR ^ aged about 30 years. Shspkeeper, ^ resident of Juna Bilaspur, Tehsil and District Bilaspur,(M.yXnQi<' the State o£ C.G.) « 4. Sadhulal Gupta,son of Badrl Nsfch Sao / aged about 57 years* Advpcate, resident of Jun'a Bilaspur, Tehsil and District-Bilaspur,(CoG.) WRCT PETITION UNDER AKTICLE 227 OF THE CQNSTITUTION OF INDIA, •:':-HC-22 <:ii^T'?n -:!?T^ S^S sR'i'R;'gfig :t»:'!i»a••^ ^si ^|<JH^ afll'M'is, (sicii+iy 3^L^^^LGl WTO(Ts()l|rai |c|'b<iil' sn^r TRiTWdfro anB tlie apppication ft Hcard Shri M.K. Bhad^ TIie petitioner has pre^ fhe Constitution of India passed by fhe 3ri Additionai^ C-ase No. 11-A/96 whereby the petitioner/objector's C.P.C. for issuiug fhe coiamit The facts leadiag to Sudlia Ram. Sao was fhe o| ll-A/96. An ejectinent clec^ Addidonal District Judge, iuto between fhe parties. Th^ after passing the decree. three sons nam.ely, and Basant Lal. Two Basaiit Lal filed an Executi(i)n heir of late Shri Sudha petitioner/objector as a part^. fhe petitioner nioved an inentioniug thereia fhat he bli Rain, hc is also catidcd to g( he be luade party tu the Sudha Ram. executed a \v3l RaghurLajidaii SODlS chl4li<rliH':l TW^^ 'f^^t O^I'^.K ^TsifStnsn^i (iri, coiuiscl for thc pctitioncr. ferred this petition under Article 227 of chaUenged fhe order dated 5-3-2003 District Judge, Bilaspur, in Execution leamed Executtug Court has rejected under Ordcr 26 Rule 1 & 2 of ibsioa to rccord tus statenient. fpm.g of fhis writ petition are tliat late [~igiaal decree holder in Civil Suit No. 1-ee was passed on 5-2-1997 by the 7th E|Uaspur based on. coinproniise entered origiual deciree holder died on 14-4-97 he origitial decree holder left behiad Prasad Rao, Raghuraj Prasad Sao rlamely, Raghuraj Prasad Sao aiid bcforc fhc Executuig Court as lceal Ram. Sao without tmpleadiag ftie r. On coining to know about this fact, a]j)plication before fhe Executuig Court iiiig fhe natural son of late Shri Sudha the Inuts of ffac dccrce and, therefore, proceediiigs. Moreover, deceased |in: favour of the petitioner/objecfor by sdt exedution % 'S'SET •<iiiiw<i, anl'M'is, ftwwy 111CTI W-([cb 200 SII^I^I P<-)i«b aiRS^I sft*iien •^fi<l sn^i^aiwafei -L- cbt^li(rl4l'1 ^Noif ^ Fs^ <^I+$K ^? aipgq sii^r which the disputed property h^LS been bequeathed to him. together with ofher properties. In orier to asccrtain the ^laun of thc pctitioner as to whcthcr fh.e petitioner is legal heir o| Executiag Court had fixed the the original decree holder, the date for recordiag the statement of fhe petitiouer in. which fhe pet^tioner nioved an application under por apponithig fhe coiainissioner to Order 26 Rule 1 of fhe C.P.C. record his stateiucnt on the gi about 74 years and being heart is not able to come to the C( objection. to that application petitioner iu wliicb he stated attending the day-to-day func ^iund fhat hc is an old inaii agcd tod high blood pressure patient, he ^ui't for giviag his statement. An ^vas filed bv the brofh.er of the that the petitioner is regularly tion and thc apptication of fhc petitioner is not bonafide. The leamed Executmg Cc^urt affer hearmg the arguments of both. fh.e partifis-and lopkuig,to of tlie petitioner aad tj&fft was si pie objections raised by fhe brother ^pported by fhe affidavit, which was not controvcrted by thc petitio^ier aiid the court reachcd to the conclusion that there is no ruatc rial before ftie couit to reach to ths conclusion that the petitioner i{s not in a position to come to the court aad give his statemen.t. ivforeover, fhe court observed that aB the necessary facilities would ^e provided to the petitioner if he coines befoi^ ffae court to give hi^ statem.cnt. It is admitted position tha): the Executmg Court is of BUaspur and fhe petitioiier is also residic|g at Biiaspur. Moreover, it appears from the Court's order that no material was produced before the [1[ft^^R3<i M-HC-22 sn^r^n tewsiiiRi *-4i<^ yfsa g;8!t ^•£-'i} 'ysf •^wiv\-li, »TI|WIG, fawiuy l|T*i?ll ib1i<»> "WI. 200 1^^T' 311^1 ?^gi8]R ^ifer -1 court in order to prove fhe cl^im thfl.t ffae petitioner is aot in a position to go .to fhe court for gi' brofher of fhc petitioner inoved (•iug statem.ent. On fhe contrary, fhe ^TL application whicb. was supported by the afiidavit that the petition^r is attendiag his daily activities. The provisions of Order 2^> Rule 1 of C.P.C. provides that the Court caii issue a conuiussion. attending the Court or who is S-oia sickness or iafinnitv unable to attead it. In fhe proviso it has exanunation on taterrogatories ^ecn prcscrioed tfaat coinjnission for IhaU not be issued unless th.e Couit, for reasons to be recorded, fhinlts it necesaary so to do. In view of fhe above brovisions, even for allowhig fhe be issued for examiaation of ftie brother of fhe petitioner moved dismissed and it is dismissed. •sbl^id'fl'l W^vS ^ 'fecA <R<<^|< ^3rf:OT 311^1 when the person is exenipted froni applic&tion fhe Court is requi|~ed to give reasons aud it is not conipulsoiy for fh.c Court in a!l| probabiiity, the coiiiinissioii has to |witoess. Moreover, in this case, the ^n applicauon which was supported by ttie af&davit fhat fh.e petijtioner is regularly attendin.g daily activides and fhe Court has tal-en care of the situation tliat if the petitioner coiaes befoic thc Cou^t aud appcars for giving statcincnt, all tlie necessary tacilities wiU ^se. provided to bim.. in view of fhe above, I am of fhe opinion that <Iie learued Executiag Court faas not passed. any order which is not w^fhia ftie coiapetence of fhe Court or which is contrary to law or wb-icjh is wifhout jurisdiction. Therefore, ! do not find ajiv reason to iiiterFcre with fhe order of fhe trial Court. The writ petition is devoid of ^nerit and ftie same is liable to be Sd/- L.C. Bhadoo jiidge