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2014 DIGILAW 331 (HP)

Gagan Singh v. Amar Singh

2014-04-02

DHARAM CHAND CHAUDHARY

body2014
Judgment Dharam Chand Chaudhary, J. Heard. 2. Challenge herein is to the order dated 5.3.2011, Annexure P-2 passed in Execution Petition No.34 of 2006 by learned Civil Judge (Junior Division), Court No.1, District Hamirpur, holding thereby the petitioners guilty for violation of the judgment and decree Ex.P-1 and direction to attach their property and its sale if they do not obey the judgment and decree, order dated 5.12.2013, Annexure P-6 issuing thereby the warrant of sale of the property of the petitioners-Judgment Debtors attached and sold as per the schedule indicated therein and auction notice, Annexure P-7. 3. It has been claimed that the petitioners-J.Ds. have not violated the judgment and decree, Annexure P-1 in any manner whatsoever and the cattle-shed they raised is over the land which in family partition fell in their share. Also that the judgment and decree passed against the petitioners-judgment debtors pertains to the land comprised in Khasra Nos.1689/1498 and 1690/1498 measuring 4 kanals 10 marlas and they have been restrained not to cause any interference therein till partition thereof. However, their entire land has now been attached and ordered to be sold. 4. The petitioners-judgment debtors suffer the decree, Annexure P-1 whereby they have been restrained from raising any kind of construction, changing the nature of the suit land in any manner whatsoever comprised in Khata No.17 min, Khatauni No.31 min, Khasra No.1690/1498 as per the jamabandi for the year 1994-95 till partition and the defendants No.2 to 4 have been restrained from interfering in any manner whatsoever over the land comprised in Khata No.16 min, Khatauni No.31 min, Khasra No.1689/1498 situated in tika Khairi, Tappa Jangal Rajgir, Tehsil Sujanpur, District Hamirpur, H.P. They did not opt to challenge the judgment and decree in an appeal before the competent court and to the contrary in violation of the judgment and decree have raised construction of a cattle-shed over the same. This has led in initiation of execution proceedings against them, to which they filed objections. Learned trial Court after taking on record the evidence as produced on both sides and affording due opportunity of being heard, rejected the objections to the Execution Petition filed by the petitioners-judgment debtors vide order Annexure P-2 and held them guilty of violation of the judgment and decree, Annexure P-1. Learned trial Court after taking on record the evidence as produced on both sides and affording due opportunity of being heard, rejected the objections to the Execution Petition filed by the petitioners-judgment debtors vide order Annexure P-2 and held them guilty of violation of the judgment and decree, Annexure P-1. Consequently, their property was ordered to be attached and sold in the case of disobedience of the judgment and decree by them. The liberty, however, was reserved to the respondent-decree holder to take consequential steps within one month. The respondent-decree holder has filed the list of property of the judgment debtors, Annexure P-3. 5. Although show cause notice to the judgment debtors as to why the property as per the list filed be not attached, seems to be issued on 24.9.2012 as is apparent from the perusal of impugned order dated 5.12.2013, Annexure P-6, yet the same has not been placed on record of this petition. The objections, Annexure P-4 preferred to the attachment of the property, which were duly considered after taking on record the reply, Annexure P-5 of respondent-decree holder, were rejected vide impugned order dated 5.12.2013, Annexure P-6. Consequently, warrant of sale with respect to the attached property was ordered to be issued and as per the time schedule fixed, the publication was ordered to be made on 16.12.2013, sale on 16.1.2014 and the report was sought to be filed on 30.1.2014. Auction notice, Annexure P-7, however, came to be issued with modified schedule, i.e. date of proclamation 18.2.2014, sale on 18.3.2014 and the next date of hearing 1.4.2014. 6. Learned counsel representing the petitioners-judgment debtors has emphasized that the alleged violation pertains only to the land bearing khasra Nos.1689/1498 and 1690/1498, measuring 4 kanals 10 marlas, the subject matter of dispute in the main suit and, as such, their entire property should have not been attached and put to sale. The order whereby the property of the petitioners-judgment debtors has been attached is not placed on record. The detail of property finds mention in the list, Annexure P-3. The order passed on 24.9.2012 referred to in the impugned order, Annexure P-6 would have been of some help to show as to which property of the petitioners-judgment debtors was attached for the reason that vide this order the petitioners-judgments debtors were issued show cause notice as to why the property so attached be not sold. The order passed on 24.9.2012 referred to in the impugned order, Annexure P-6 would have been of some help to show as to which property of the petitioners-judgment debtors was attached for the reason that vide this order the petitioners-judgments debtors were issued show cause notice as to why the property so attached be not sold. The order dated 24.9.2012 however has not been placed on record. Therefore, such order having not been challenged, the grievance to this effect as highlighted by learned counsel at this stage is of no help to the case of the petitioners-judgment debtors. The petitioners-judgment debtors could not even challenge the order dated 5.3.2011, Annexure P-2 at an appropriate stage. Against the impugned order dated 5.12.2013, Annexure P-6 a petition registered as CMPMO No.44 of 2014 was previously also filed, however, the same was dismissed as withdrawn on 6.3.2014 with liberty to have appropriate remedy, as finds mention in the grounds of this petition. 7. Interestingly, the time schedule as indicated in the impugned auction notice, Annexure P-7 stands already elapsed with the passage of time, because as per this notice, the date for sale of the property was fixed as 18.3.2014, whereas, the date for filing report in the trial Court 1.4.2014. Therefore, otherwise also, no interference of this Court at this stage is warranted. 8. For all the reasons hereinabove, this petition fails and the same is accordingly dismissed. The pending application(s), if any, shall also stand disposed of.