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2000 DIGILAW 217 (HP)

KAMLA DEVI v. JASWANT SINGH DOD

2000-08-11

C.K.THAKKER

body2000
JUDGMENT (C.K. Thakker, CJ.)- This petition is filed by the petitioner against an order passed by Sub Judge, 1st Class Court No. 1, Rohru, Camp at Jubbal, on July 8, 1997 in Execution No. 8/10 of 1992. 2. It appears that there was dispute between the petitioner and the respondents in respect of lands bearing Khasra Nos. 397/1, 397/2 and 397/3. A decree was passed on January 15, 1988, which was challenged and the District Court passed a decree on September 30, 1988. The proceedings were then taken to this Court and the matter was finally concluded by a judgment of FAO No. 151 of 1988 of the Division Bench of this Court on September 17, 1991. While disposing the appeal, he Division Bench observed "As a result of the above discussion, we have no hesitation whatsoever in up-holding the report of the learned Local Commissioner. Its net result would be that land measuring 3 Bighas comprised in khasra No. 397/1 shown in the Tatima at Annexure-B to the report of the learned Local Commissioner would hence-forth be in possession of the respondents as owners thereof. Similarly, khasra No. 397/2 measuring 3 bighas 3 biswas out of the land in dispute and the remaining part of khasra No. 397 shown as 397/3 in the Tatima at Annexure-B would be in exclusive possession of Kamla Devi as owner thereof. The respondents would stand restrained by way of a permanent injunction from interfering in peaceful possession of khasra No. 397/2 and khasra No. 397/3 held to be in possession as owner of Kamla Devi. F.A.O. No. 151/88 is accepted accordingly, and the order of remand dated 30.9.1988 is hereby set aside. A decree sheet would be prepared in the above terms in Civil Suit No. 15/1 of 1986 registered in the Court of the Subordinate Judge, Rohru. There will be, however, no order as to costs." 3. The above directions of this court were clear. According to this court, the land admeasuring 3 Bighas, comprised of Khasra No. 397/1 belonged to the respondents, whereas lands bearing Khasra No. 397/2 admeasuring 3 Bighas 3 Biswas as also Khasra No. 397/3 would be in exclusive possession of the petitioner. The respondents were restrained from interfering with the possession of the petitioner. 4. According to this court, the land admeasuring 3 Bighas, comprised of Khasra No. 397/1 belonged to the respondents, whereas lands bearing Khasra No. 397/2 admeasuring 3 Bighas 3 Biswas as also Khasra No. 397/3 would be in exclusive possession of the petitioner. The respondents were restrained from interfering with the possession of the petitioner. 4. It was the case of the petitioner that in spite of clear directions in the decree passed by this Court on September 17, 1991, possession of the petitioner from Khasra Nos. 397/2 and 397/3 was disturbed by the respondents. An application was, therefore, filed under Order 21, Rule 32 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code), complaining there in that the judgment-debtors had "knowingly and wilfully" disobeyed the decree and, hence, they were liable to be dealt with in accordance with law by sending them to civil prison. 5. A reply was filed by the judgment-debtors, taking preliminary objections as also objections on merits. 6. The learned Judge after hearing the parties, by an order dated July 8, 1997, dismissed the application. The said order is impugned in the present petition. 7. I have heard Mr. Ajay Mohan Goel, learned Counsel for the petitioner and Mr. N.D. Sharma, learned Counsel appearing vice Mr. Ajay Kumar, learned Counsel for the respondents. 8. The Executing Court has observed that it was not proved that judgment- debtors had disobeyed the decree passed by the Court and, hence the provisions on Order 21, Rule 32 of the Code did not apply. The Executing Court, however, further observed that looking to the entire records and proceedings, which culminated into final decree passed by the High Court in F.A.O. No. 151 of 1988, it was clear that the respondents-judgment debtors had a right of way, through lands bearing Khasra No. 397/2 and 397/3. 9. The Executing Court stated : "There is another important factor. When the respondents led evidence to show that the path to their house passes through land in respect of which decree is there, the petitioner ought to have suggested in cross-examination that the path to that house did no run through such land. The land through which it in fact passes should have bee suggested. But no such suggestion was given. The land through which it in fact passes should have bee suggested. But no such suggestion was given. In the circumstances, it has to be taken that this is the only path to the respondents house in their use since the construction of the house. If that is the position the respondents commit no violation of decree. When the house is there, a path to such house will apparently be there. The authorities which passed the decree apparently did not intend to debar the respondents from use of such path. In brief, the path leading to the respondents house, if at all it passes through land bearing khasra No. 392/2 and 397/3, is an old one. No new path had been created by respondents. Issue No. 1 is therefore answered in negative." 10. Two questions arise for consideration of this Court. Firstly, whether the judgment-debtors had interfered with the possession of the petitioner-decree holder of lands bearing Khasra Nos. 397/2 and 397/3 on April 12, 1992, as averred by the decree holder; and, secondly, whether the Executing Court was right in observing regarding existence of path leading to the house of the judgment-debtors through land bearing Khasra Nos. 397/2 and 397/3. 11. So far as the first question is concerned, I am of the considered opinion that an application under Order 21, Rule 32 of the Code was not maintainable. Once the decree was passed by a competent Court and the decree-holder was held entitled to lands bearing Khasra No. 397/2 and 397/3 and judgment-debtors were declared entitled to possession of land bearing Khasra No. 397/1, the matter was over. If thereafter, there was encroachment or illegal interference with the possession of the decree- holder, it was a fresh cause of action, for which an appropriate action could be taken by the aggrieved party and no proceedings under Order 21, Rule 32 of the Code would be competent. (Vide, Uma Shankar v. Sarabjeet, 1996(2) SCC 371; Ajit Chopra v. Sadhu Ram, 2000(1) SCC 114. 12. The second grievance voiced by the learned Counsel for the petitioner- decree-holder, however, is well founded. From the directions issued by this Court in F.A.O. No. 151 of 1988, the relevant portion of which has been extracted hereinabove, it is clear that a declaration was made by this Court in favour of both -decree-holder as well as judgment-debtors. 12. The second grievance voiced by the learned Counsel for the petitioner- decree-holder, however, is well founded. From the directions issued by this Court in F.A.O. No. 151 of 1988, the relevant portion of which has been extracted hereinabove, it is clear that a declaration was made by this Court in favour of both -decree-holder as well as judgment-debtors. The proceedings were, thereafter, initiated by the decree-holder by filing an application under Order 21, Rule 32 of the Code. Such application was filed before the Executing Court. The jurisdiction of the Executing Court was limited to execute the decree. It has to execute the decree as it was. It is well settled that an Executing Court cannot enter into the correctness or otherwise of the decree. Similarly, it cannot alter or substitute its own decree for the decree passed by a competent civil Court. 13. In the instant case, when a decree was passed by this Court and it was specifically observed that the decree-holder was entitled to lands bearing Khasra Nos. 397/2 and 397/3 and the judgment-debtors were entitled to the land bearing Khasra No. 397/1, it was not within the power, authority or jurisdiction of the Executing Court to state anything regarding right of was of judgment-debtors from the lands of the decree-holder bearing Khasra Nos. 397/2 and 397/3. To that extent, therefore, in my opinion the Executing Court has altered the decree, which was not within the jurisdiction of the Court. To that extent, therefore, the order deserves to be quashed ad set aside. 14. For the foregoing reasons, the revision petition deserves to be partly allowed and is allowed ad the observations made by the Executing Court regarding right of way from lands bearing Khasra Nos. 397/2 and 397/3 are set aside. In the facts and circumstances of the case, there shall be no order as to costs.