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Himachal Pradesh High Court · body

2003 DIGILAW 63 (HP)

Ram Piari v. Ramesh Chand

2003-03-26

M.R.VERMA

body2003
JUDGMENT : M.R. Verma, J. This Revision petition is directed against the order dated 13.2.2002, passed by the learned Sub-Judge/Rent Controllers Kangra, in execution petition No. 14/1999, whereby he had issued the warrant of possession of the property in dispute without deciding the application for amendment of the objection petition and the objection petition filed by the applicant/objectors. 2. Brief facts leading to the presentation of the present revision petition are that the respondents have filed aforesaid execution petition in the Court of learned Sub-Judge, Kangra for putting them in possession of the property in question. In the said execution, petitioner Nos. 1, 5 predecessor-in-interest of petitioner No. 6 and proforma respondent No. 9 filed objections under Section 47 of the Code of Civil Procedure. Subsequently on 30.4.2002 an application for amendment of the objection petition was also filed. Without deciding the application for amendment of the objection petition and the objection petition, the Executing Court passed the impugned order directing issue of warrant of possession in execution of the eviction order and observed that the objection petition would be considered on the next date. Being aggrieved by the impugned order, the petitioners have preferred the present revision petition. 3. I have heard the learned counsel for the parties and have also perused the relevant record. 4. It is not in dispute that the objections under Section 47 of the Code of Civil Procedure against the execution have been preferred by the aforesaid objectors and subsequently they have filed an application for amendment of such objections. The application as also objection petition are pending disposal. The procedure adopted by the Executing Court in issuing the warrant of possession in execution without deciding the objections raising the question about the executability of the order sought to be executed is contrary to law and procedure. Once the executability of a decree/order is assailed by filing objection petitions, first the question of executability of the decree/order has to be decided and it is only in the event of the objections having been dismissed that the decree/order will be executed. Thus Executing Court in keeping the application for amendment of objection petition and the objection petition pending has acted in gross violation of the law and procedure in issuing the warrant of possession pursuant to the order sought to be executed. Therefore, the impugned order cannot be sustained. 5. Thus Executing Court in keeping the application for amendment of objection petition and the objection petition pending has acted in gross violation of the law and procedure in issuing the warrant of possession pursuant to the order sought to be executed. Therefore, the impugned order cannot be sustained. 5. As a result, this revision petition is allowed and the impugned order is set aside. The Executing Court is directed to decide the application for amendment of the objection petition and thereafter the objection petition/amended objection petition as the case may be, within two months from the date which is hereinafter fixed for appearances of the parties before it and then proceed to dispose of the present petition in accordance with law. 6. Parties through their learned counsel are directed to appear before the Executing Court on 10.4.2003.