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2013 DIGILAW 140 (UTT)

KESAR RAM v. GULAB RAM

2013-03-15

B.S.Verma

body2013
JUDGMENT Hon’ble B.S. Verma, J. (Oral) Heard Mr. S.S. Chaudhary, Advocate for the revisionists and Mr. Chandramauli Sah, Advocate holding brief of Mr. Neeraj Upreti, Advocate for the respondents. 2. This revision is directed against the judgment and order dated 8.3.2011 passed by Civil Judge (Senior Division) Pithoragarh in Civil Execution Case No.1 of 2010, whereby said court has dismissed the execution application of the revisionist as not maintainable. 3. By a perusal of the impugned order, it transpires that the executing court has misdirected itself in dismissing the application as not maintainable. While doing so, the learned executing court placed reliance upon a judgment of Kariyappa vs. Haladappa A.I.R. 1989 Karnataka 163, wherein it has been held that the initial onus to place the relevant material for an action against the judgment-debtor will be always on the decree holder. Reliance was also placed upon Shivmurti Mahalingappa Kuchnaur vs. Danamadvi Cycle Mart A.I.R. 1987 Karnatka 26, wherein same view has been taken. 4. The executing court has held that no evidence was adduced before the executing court to this effect. 5. So far as the maintainability of the application is concerned, the application was maintainable against the persons who were disobeying the decree of the Court. So far as Mohan Ram was concerned, he was not party to the suit. The executing court has held that he was not party in the suit. 6. By a perusal of the application, it transpires that four persons, namely, Gulab Ram, Rajendra Prasad, Smt. Kamla Devi W/o Gulab Ram and Smt. Kamla Devi W/o Late Bachhi Ram, were mentioned in the application against whom execution was sought. They were the defendants before the trial court and the suit was decreed against them. This fact ought to have been proved before the executing court by the revisionists/decree holder that these persons are interfering in their possession. 7. In the facts and circumstances of the case, coupled with the fact that the application for execution cannot be dismissed as not maintainable without recording any evidence, to do the complete justice, the Court thinks it just and proper that one more opportunity should be given to the revisionists/decree holder to led evidence to this effect. 8. Consequently, the revision is allowed. Impugned order dated 8.3.2011 passed by Civil Judge (Senior Division) Pithoragarh in Civil Execution Case No.1 of 2010, is set aside. 8. Consequently, the revision is allowed. Impugned order dated 8.3.2011 passed by Civil Judge (Senior Division) Pithoragarh in Civil Execution Case No.1 of 2010, is set aside. One more opportunity is given to the revisionists/decree holder to adduce evidence before the executing court and the judgment debtor may also file evidence/objection in rebuttal against the said application. The executing court, after hearing the parties and perusal of evidence, shall decide the execution application on merit, by a reasoned and speaking order.