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Rajasthan High Court · body

1995 DIGILAW 1010 (RAJ)

Municipal Board, Behror v. Ramavtar

1995-11-16

N.C.KOCHHAR

body1995
Honble KOCHHAR, J. – The facts giving rise to this revision petition moved by the Municipal Board, Behror District Alwar are as under :– (2). Gram Panchayat, Behror had filed a suit for possession and perpetual injunction against Ramavtar and others, which was decreed vide the judgment passed in Civil Suit No. 54/70 by the learned Munsif, Behror. The appeal filed by the abovesaid judgment-debtors had been heard by the learned Additional District Judge No.1, Alwar, who affirmed the decree passed by the learned Munsif, Behror and dismissed the appeal vide the judgment and decree dated 8.10.1982 in Civil Appeal No. 183/81. The second appeal filed by the abovesaid judgment debtors was dismissed by me vide the judgment dated 13.9.1993. In the meanwhile, by virtue of a notification issued by the State Government, the Gram Panchayat, Behror was converted into the Municipal Board and all the properties and rights of the Gram Panchayat stood vested in the petitioner-Municipal Board, who applied for execution of the decree passed in the abovesaid Civil Suit No. 54/70 and affirmed by this court in Civil Second Appeal vide the judgment dated 13.9.1993. However, the lear- ned trial/executing court declined to execute the decree on the ground that the substitution should be got made by the petitioner from this court who had passed the final decree while dismissing the second appeal. The petitioner, therefore, has filed this revision petition against the abovesaid order dated 16.12.1994 passed by the learned Civil Judge (Jr.Div.) & Judicial Magistrate, Behror in Execution Case No. 41/33/94. (3). Shri Malik has appeared for the respondents No. 1 and 3 and has opposed this petition on the ground that the petitioner ought to have moved an application for substitution in place of the original decree-holder; namely the Gram Panchayat, Behror and that this court having not passed any specific decree, cannot substitute the petitioner in place of the Gram Panchayat. (4). I have heard the learned counsel for the parties and have also perused the record of the case. (5). It cannot be disputed that a judgment and decree passed by the learned trial court gets merged in the judgment passed by the learned appellate court and the judgment passed by the final court would be the final judgment and the decree has to be drawn in accordance therewith. (5). It cannot be disputed that a judgment and decree passed by the learned trial court gets merged in the judgment passed by the learned appellate court and the judgment passed by the final court would be the final judgment and the decree has to be drawn in accordance therewith. The judgment in question having finally been passed by this Court the decree certainly is of this court and not of the trial court as the decree passed by the learned trial court and the appellate court got merged in the decree ultimately passed by this court. Even if it be accepted that even in spite of the fact that the decree passed by the learned trial court had been affirmed by this court the decree remains that of the learned trial court, there is no reason why the petitioner should be made to go back to the learned trial court with a view to delay the proceedings of execution. If that procedure is adopted, it will mean that this court will be helping those who are interested in delaying the execution of the decree obtained by the decree-holder and to keep it away from the relief to which it has been found entitled in accordance with the decree passed. (6). Consequently, the application for substitution of the petitioner-Municipal Board, Behror is allowed and it is substituted as the decree-holder in place of the Gram Panchayat, Behror and it will be entitled to execute the decree obtained in the abovesaid proceedings. (7). The revision petition stands disposed of accordingly.