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2002 DIGILAW 22 (HP)

KRISHNA DEVI v. HARBHAJAN LAL

2002-01-11

A.K.GOEL

body2002
JUDGMENT Arun Kumar Goel, J. :- This revision petition is directed against the order dated 29.9.2001, passed by learned Sub Judge 1st Class, Court No.l, Una (H.P.) By means of impugned order objections under Section 47 of the Code of Civil Procedure, in Execution Petition No.8/98, filed by the present petitioner-judgment debtor, have been dismissed and warrant of possession was ordered to be issued on filing of P.P. for 15.12.2001. 2. At the time of hearing of this revision petition, learned counsel for the parties were not at variance that Civil Suit No. 153/88 was filed by the respondent, wherein preliminary decree was passed on 17.12.1992. Thereafter an application was filed for passing final decree by the respondent. Trial Court registered it as CMA No. 28/93. Vide judgment and decree dated 4.4.1998, final decree was passed after objections filed by the present petitioner/judgment debtor against the report of the Local Commissioner were dismissed.. Thus the report of Local Commissioner Ext.PA was confirmed. Decree sheet was drawn accordingly. Petitioner feeling aggrieved by the said judgment and final decree preferred RSA No.424 of 1999 in this court. It came up for consideration before this court on 24.7.2000, after hearing both sides, it was dismissed. 3. In the aforesaid background when execution was levied by the respondent-decree holder for getting possession of the land in terms of the final decree, objections were filed by the petitioner-judgment debtor. It may be noted that prior to the present objection petition, petitioner had preferred objections under Section 47 vide objection petition dated 25.9.1999. Those were dismissed by the trial Court on 30.6,2001. 4. Thereafter another set of objections under Section 47 was filed by the petitioner/5udgment debtor, which has been dismissed by means of impugned order. 5. Learned counsel for the petitioner Sh. Ajay Sharma, forcefully urged that trial Court had fallen into error by summarily dismissing the objections. It is not only illegal but contrary to law also. According to him decree was in executable since land had decreased from 6 Marias out of which l/3rd share was allotted to the respondent by the decree. This redaction wa because of settlement operator having bee carried out in the area. As such, unless the objections were gone into and determined by the trial Court, summary dismissal by the trial Court cannot be justified. This redaction wa because of settlement operator having bee carried out in the area. As such, unless the objections were gone into and determined by the trial Court, summary dismissal by the trial Court cannot be justified. He placed reliance on a number of decided cases to which a reference will be made hereinafter. 6. All these pleas have bee controverted by Sh. H.K. Bhardwaj, learned counsel for the respondent-decree holder. According to him, there is no ambiguity or otherwise which may come in the way of the execution of the decree. After the appointment of the Local Commissioner, as well as passing of the final decree, trial Court according to him is well within its jurisdiction to execute the impugned decree. In addition to this, he also submitted that the petitioner has also successfully avoided the execution of the decree which has become conclusive after the passing of the final decree which was upheld by this Court. Per him, petitioner is misusing as well as abusing the process of law and court, as such, the revision petition is liable to be dismissed. 7. After hearing learned counsel for the parties and after having gone through the record of this case, I am satisfied that there is no ambiguity or any other obstruction in the execution of the final decree referred to hereinabove. It is clarified that trial Court has to execute the decree on the basis of Ext.PA referred to in the final decree which was affirmed and has been upheld even by this court in RSA No.424/99. 8. In addition to this petitioner seems to be filing objections in driblets, j As already noted, first set of objects was filed by her vide petition objection dated 25.10.1999. It was dismissed on 1.6.2001. It was thereafter that present set of objection was filed after about two months and three weeks. In case, petitioner had any genuine grievance, against the execution of the decree in question as now pleaded, she would have raised all possible objections admissible under law and available to her in one go i.e. when first set of objection was filed. 9. She took chance by filing first set of objections in the year 1999. When those were dismissed and execution was to proceed further for executing the decree, she has filed the present objections petition on 21.9.2001. This can never be the purpose of any law. 9. She took chance by filing first set of objections in the year 1999. When those were dismissed and execution was to proceed further for executing the decree, she has filed the present objections petition on 21.9.2001. This can never be the purpose of any law. In case, what was urged on behalf of the petitioner is accepted, it will tantamount to enable a litigant, (like her) to ensure that till she succeeds she has a right o file objections. Regarding identity of land, objection was earlier raised, which was dismissed on 1.6.2001. 10. Cases relied upon by Mr. Sharma are being referred to now: 11. First case cited was Harnandrai Badridas v. Debidutt Bhugwati Prasad & Ors. AIR 1973 Supreme Court 2423. Question relating to auction purchaser was being examined by the Supreme court. Since decree holder was the auction purchaser, matter of delivery of possession was held to be one pertaining to execution, discharge or satisfaction. This is not the position in the present case. 12. Next decision relied was Prabhu Dayal v. Ram Nik Lal & Anr. AIR 1979 Allahabad 193. When a reference is made to this, it has no applicability to the facts of the present case. In this case, it was held that objection relating to territorial jurisdiction of trial Court cannot be entertained by the executing Court. Besides this who is an agriculturist within the meaning of Section 60 of CPC and what were the tests to determine it were laid down in this decision. 13. In Gopalkrishna Kammath v. R. Bhaskar Rao, AIR 1989 Kerala 251 it was held that where the property which was not covered by decree, but was delivered to decree holder in execution of decree. It was held that proper remedy for judgment-debtor to recover property delivered in excess of decree, was by application under Section 47 C.P.C. and not by separate suit. So far legal proposition decided by this judgment is concerned, again there is no dispute. However, the fact remains that in the instant case warrant of possession of the land is yet to be issued. This land is clearly identifiable as detailed in Ext.P.A, referred to the final decree, which is being executed. As such, this decision does in any manner help or advance the case of the petitioner. 14. In Laxmidhar Sahu v. Smt. Padmini Tripathy & Ors. This land is clearly identifiable as detailed in Ext.P.A, referred to the final decree, which is being executed. As such, this decision does in any manner help or advance the case of the petitioner. 14. In Laxmidhar Sahu v. Smt. Padmini Tripathy & Ors. AIR 1991 Orissa, Page-9 amongst other things it was held that an executing court can under Sections 47 and 51 of the C.P.C. interpret the decree when same is not clear, again this is not the position in the present case. As well as in the face of the finding that the decree is clearly executable. 15. Reliance on Mangal Prasad (dead) by LRs & Anr, v. Krishna Kumar Maheshwari & Ors. AIR 1992 Supreme Court 1857, on behalf of the petitioner-judgment debtor is misconceived. 16. At the risk of the repetition, it may be observed that there is no ambiguity or any dispute, nor it can be said that there is any difficulty in identifying the land of which possession is to be delivered. As already observed, identical objections were raised against the report of the Local Commissioner before passing of the final decree as well as in the second appeal. Thereafter, again objections regarding executablity of the decree were raised in the year 1999, which stood dismissed on 1.6.2001. In these circumstances, it is a clear cut case of misusing as well as abusing the process of law and court on behalf of the petitioner. 17. On examination of the impugned order, I am further satisfied that the trial Court has not committed any jurisdictional error within the meaning of Section 115 C.P.C. calling for interference in this revision petition. 18. No other point is urged. 19. In view of the aforesaid discussion, there is no merit in this revision petition, which is accordingly dismissed with costs assessed at Rs.2,000/-. Trial court is directed to execute the decree in accordance with law with utmost expedition and despatch. Registry is directed to send a copy of this order to the trial Court.