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2005 DIGILAW 378 (HP)

TEK CHAND v. JAI NAND

2005-10-06

V.M.JAIN

body2005
JUDGEMENT V.M. Jain, J (Oral).: This order shall dispose of both the above mentioned Revision Petitions, against the orders dated 16.5.2005 passed by the executing Court, dismissing the objections filed by the judgments debtors and ordering the issuance of warrant of attachment against the property of the judgment debtors. 2. Civil Revision No.65 of 2005 is against the order dated 16.5.2005 dismissing the objection petition of the judgment debtors, whereas Civil Revision No. 98 of 2005 is against both the orders dated 16.5.2005, dismissing the objection petition of the judgment debtors and directing the issuance of warrant of attachment against the property of the judgment debtors. 3. Jai Nand Sharma Plaintiff had filed a suit for permanent prohibitory injunction etc. against the defendants. The said suit was dismissed by the trial Court on 1.12.1993. However, in appeal filed by the Jai Nand Sharma, plaintiff, appeal was partly allowed by the learned District Judge, Shimla on 1.6.1998 and the defendants were restrained through a permanent prohibitory injunction not to discharge the used and foul water of their newly constructed house and not allow the Rain water cascading on their newly constructed house to flow on and over the property of the plaintiff. It was further made clear that this injunction would impliedly mean the issuance of a mandatory injunction to the defendants to provide proper drainage system for their newly constructed house, so that the used water and the rain water of their newly constructed house does not flow on and over the adjoining property of the plaintiff. To that extent the suit of the plaintiff was decreed. Aggrieved against the aforesaid judgment and decree dated 1.6 1998 passed by the learned District Judge, both sides felt aggrieved and filed regular second appeals in this Court bearing RSA No. 436 of 1998 and RSA No. 449 of 1998, which were admitted and are pending in this court. In the mean while, Jai Nand Sharma plaintiff. DH filed execution petition for implementing the aforesaid decree dated 1.6.1998 passed by the learned District Judge, in the said execution petition, the judgment debtors filed objections. The said objections were contested by the decree holder by filing reply. After hearing both sides the learned executing Court dismissed the objections, vide impugned order dated 16.5.2005 and by a consequential order of even dale ordered attachment of the property of the judgment debtors. The said objections were contested by the decree holder by filing reply. After hearing both sides the learned executing Court dismissed the objections, vide impugned order dated 16.5.2005 and by a consequential order of even dale ordered attachment of the property of the judgment debtors. Both these orders dated 16.5.2005 are under challenge in the aforementioned civil revision petitions in this Court filed by the judgment debtors. 4. After hearing the learned counsel for the parties in both the petitions and perusing the records, in my opinion, the order dated 16.5.2005 passed by the executing Court, dismissing the objection petition of the judgment debtors, is liable to be set aside and as a consequence thereof, the consequential order dated 16.5.2005 passed by the executing Court ordering the issuance of warranty of attachment of the property of the judgment debtors is also liable to be set aside. 5. In the objection petition the judgment debtors had specifically taken the plea that they had complied with the decree passed by the learned District Judge, which fact was denied by the decree holder. In order to prove that the decree in question had not complied with by the judgment debtors, the decree holder placed reliance on the expert report Ex. RW-2/A. The learned executing Court, while placing reliance on the said report of the expert had held that the decree in question had not been complied with by the judgment debtors and resultantly, the objections were dismissed. However, in my opinion, no reliance whatsoever could be placed on the said expert report Ex.RW/2 for holding that the decree in question had not been complied with, inasmuch as, there is nothing to indicate that Sh. Vivek Karol, who had allegedly prepared the aforesaid report Ex. RW2/A, had associated the judgment debtors before preparing the said report In this view of the matter, in my opinion, the executing Court could not have placed implicit reliance on the said report Ex. RW/2 in holding that the judgment debtors had failed to comply with the decree dated 1.6.1998. On the other hand, in my opinion, it was a fit case where the learned executing Court ought to have appointed a Local Commissioner to visit the spot, after issuing notice to both the sides and to submit his report on the basis of the spot inspection. On the other hand, in my opinion, it was a fit case where the learned executing Court ought to have appointed a Local Commissioner to visit the spot, after issuing notice to both the sides and to submit his report on the basis of the spot inspection. Furthermore, it would have been better if the said expert had gone to the spot at the time of rainy season so that it could be known as to whether the steps taken by the judgment debtors in implementing the decree dated 1.6.1998 are in consonance with the aforesaid decree passed by the learned District Judge. In my opinion, non appointment of a Local Commissioner by the learned executing Court, on the facts and circumstances of the present case, has resulted in miscarriage of justice, which was necessitated the setting aside the order dated 16.5.2005 passed by the learned executing Court, dismissing the objection petition. 6. In view of the above, both the revision petitions are allowed, the both the orders dated 16.5.2005 passed by the executing Court, which are the subject matter of challenge in the above mentioned petitions, are set aside and the case is sent, back to the learned executing Court for deciding the objection petition of the judgment debtors afresh in accordance with law, after appointing a Local Commissioner to visit the spot and to submit his report on the basis of spot! inspection, keeping in view the observation made by me above. 7. The parties through their learned counsel are directed to appear before the executing Court -n 10.11.2005, for further proceedings in accordance with law.