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2000 DIGILAW 702 (PNJ)

Ami Lal v. Umrao Singh

2000-07-11

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. (Oral) - This is a civil revision and has been directed against the order dated 25.5.2000 passed by Additional Civil Judge (Senior Division), Narnaul, who dismissed the objections of the present petitioner (judgment debtor No. 3) for the reasons given in paras 8 and 9 of the order, which read as under :- "8. The decree in question was passed on 11.3.88. Admittedly JD No. 1 Jhutha Ram transferred has interest in favour of JD No. 3, who is his real brother, on 15.6.88 i.e. after passing of the decree. JD No. 3 is estopped to take plea that he was not aware of the decree or that he is not bound by the decree because transferee of an interest of JD is bound by the decree. He can take the property subject to the orders of any court pertaining to the land being transferred in his favour. The plea of JD No. 3 that his Puccka houses and boundary wall already existed, has absolutely no force because as per his own case, the became owner in possession after transfer in his favour on 15.6.88. It is thus clear that JD No. 3 i.e. transferee of JD No. 1 has violated the decree. The plea of JD No. 3 that no decree of mandatory injunction was passed, has absolutely no force because the construction was evidently raised by him after passing of the decree. 9. As a result of whole of my above discussion, objections of JD No. 1 as well as JD No. 3 are hereby dismissed. It is directed that property of JDs be attached for 19.8.2000 issuing warrant of attachment in this regard for violating the decree, on filing of PF/MF etc. JDs are further directed to demolish the construction raised by them in suit property by date fixed; otherwise their property, which is to be attached, shall be sold by way of auction in accordance with law." 2. Some facts can be noticed in the following manner :- A civil suit was filed by Umrao Singh against Jhutha Ram and Nar Singh and the same was decided on 11.3.1988. Some facts can be noticed in the following manner :- A civil suit was filed by Umrao Singh against Jhutha Ram and Nar Singh and the same was decided on 11.3.1988. A decree for permanent injunction was passed whereby defendants No. 1 and 2 were restrained from raising any construction on any specific part of the suit land till it is got partitioned by the parties in accordance with law and the said decree became final. It has not been complied with by the judgment debtors No. 1 and 2. Judgment debtor No. 1 sold his right, title and interest in the property to respondent No. 3 Ami Lal, the present petitioner. Objections were filed by the judgment debtors to the execution of the decree. The case set up by the present petitioner before the executing Court is that he had no knowledge of the decree; that he is owner in possession of one kanal of land out of the suit property by virtue of family settlement dated 15.6.1988 in which his pucca boundary wall and pucca house exist and Judgment Debtor No. 1 had no concern with it. He also submitted that the decree holder has not obtained any decree of mandatory injunction and so execution is not maintainable. All the three objections raised by judgment debtor No. 3 Ami Lal (now petitioner) were dismissed vide order dated 25.5.2000 and aggrieved by the said order, the present revision. 3. I have heard Mr. S.K. Mittal, Advocate, on behalf of the petitioner, who submitted at the first instance that the present petitioner Ami Lal is not bound by the decree as it was against judgment debtors No. 1 and 2. This argument is not acceptable to this Court because the petitioner is the transferee of judgment debtor No. 1 and all the rights which he will get are subject to decree in favour of respondent against judgment debtors No. 1 and 2. 4. It was then submitted by the learned counsel for the petitioner that at the most the decree holder became a co-sharer and in these circumstances, as per the latest view of the Honble Supreme Court, a co-sharer can raise construction on the joint holding and the right of other co-sharers is to seek partition. It was also submitted by Mr. It was then submitted by the learned counsel for the petitioner that at the most the decree holder became a co-sharer and in these circumstances, as per the latest view of the Honble Supreme Court, a co-sharer can raise construction on the joint holding and the right of other co-sharers is to seek partition. It was also submitted by Mr. Mittal that his client is ready to give an undertaking before this Court that within a reasonable time he shall file partition proceedings to get the property demarcated in his favour. Also it was submitted by him that the decree in favour of the decree-holder was not in the shape of mandatory injunction. It was a decree for injunction and there is no evidence on the record to show that the present petitioner had constructed a building after the passing of the decree. 5. I have considered the submissions raised by the learned counsel for the petitioner and am of the considered opinion that the present petitioner Ami Lal, who is none else but the real brother or Jhutha Ram, is trying to create hurdles for the smooth execution of the decree. Judgment debtor No. 3 has not led by evidence on the record to show that the site which was constructed subsequently after the passing of the decree was in existence at the time of the filing of the suit and in these circumstances it was obligatory on the part of the decree holder to file a suit for mandatory injunction. If some construction has been raised after the passing of the decree by the judgment debtor or his successor, that illegal construction will not hamper the execution of the decree. 6. In these circumstances, I do not see any illegality or impropriety in the impugned order. No merit. Dismissed. Revision dismissed.