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2015 DIGILAW 256 (HP)

Roshan Lal v. Dayakar

2015-03-27

TARLOK SINGH CHAUHAN

body2015
JUDGMENT : Tarlok Singh Chauhan, J. The judgement-debtor is the petitioner, who has invoked the jurisdiction of this Curt under Article 227 of the Constitution of India for setting aside the orders dated 12.8.2013 and 1.9.2014 passed by the learned Civil Judge (Junior Division) Arki, whereby warrants of possession have been issued against him in execution petition instituted by the decree holder- respondent. 2. Indisputably, an ex-parte decree, passed in favour of the respondent has attained finality and when the execution petition was filed, the respondent was duly served for 13.3.2013, on which date after putting in appearance he requested for time to file reply and the case was thereafter ordered to be listed on 11.4.2013. Thereafter even on 11.4.2013, 20.5.2013 and 28.6.2013, the petitioner did not file his objections and ultimately the executing court vide its order dated 12.8.2013 closed the right of the judgement-debtor to file the objections. 3. This order initially remained unchallenged. However, when the warrants of possession came to be issued pursuant to orders passed by the learned Executing Court on 1.9.2014, the petitioner under the garb of assailing this order also questioned the order dated 12.8.2013. 4. It is fundamental that where a decree has been obtained by a party, he should not unnecessarily be deprived of the fruits of the decree except for good reasons. Until that decree is set-aside, it stands good and it should not be lightly dealt with. In Ravinder Kaur vs. Ashok Kumar and another AIR 2004 SC 904 , the Hon’ble Supreme Court has observed as follows:- “19. We have noted herein above that the delivery warrant, consequent to which the appellant came to be put in possession of the property, was challenged before the High Court in Civil Revision No. 5947 of 2003. By the impugned order the High Court without considering the earlier orders of the courts including that of the High Court made in revision filed against the delivery warrant, proceeded to consider the objection of the respondent as to the identity of the suit property as if it was being raised for the first time in the execution petition. By the impugned order the High Court without considering the earlier orders of the courts including that of the High Court made in revision filed against the delivery warrant, proceeded to consider the objection of the respondent as to the identity of the suit property as if it was being raised for the first time in the execution petition. It is proceeding on that basis the High Court in the impugned order observed : "It was imperative for the learned executing court to have considered the objections raised by the present petitioners before taking steps to issue warrants of possession, with a direction that the possession be delivered as per site plan. In my opinion, the learned executing court committed a patent illegality in ordering the issuance of warrants of possession, vide order dated 3.12.2002." 20. This opinion of the High Court, in our considered view, is wholly erroneous for more than one reason. The objection that the learned Judge referred to in the impugned order raised by the respondent herein was in regard to the correctness of the site plan. As noted earlier this very issue was specifically raised in the original ejectment proceedings and was held against the respondents based mainly on the admission of the first respondent which we have already extracted herein above. At the cost of repetition, we must re-stated that this question of identity of the property was never again raised in the appeal before the appellate authority, in the revision before the revision authority, namely, the High Court or in the SLP before this Court. In such circumstances, we fail to understand how this very issue can be reagitated in the execution proceeding by the tenants. It is also to be noticed that the executing court has rightly observed that re-opening of this issue would amount to asking that court to go behind the decree which is impermissible in law. We must note this finding of the executing court is not even noticed by the High Court in the impugned order. The High Court also did not take into consideration the reasoning of the co-ordinate bench of the same High Court in the dismissal order made in C.R.P. No. 5175/2002 on 29.10.2002 which while rejecting the similar contention of the respondents had specifically observed the attempt of the tenants was with a view to delay their ejectment. The High Court also did not take into consideration the reasoning of the co-ordinate bench of the same High Court in the dismissal order made in C.R.P. No. 5175/2002 on 29.10.2002 which while rejecting the similar contention of the respondents had specifically observed the attempt of the tenants was with a view to delay their ejectment. In such a factual background, we think the impugned judgment is wholly erroneous having no legal or factual basis to sustain it. We also must notice that the High Court in the impugned order has made an observation which in effect, in our opinion, makes the execution proceedings liable to be dismissed. The said observations is as follow :- "In the present case, it is proved on the record that the shop regarding which the decree-holder was seeking possession during execution proceedings was not the one regarding which the ejectment order had been passed by the Rent Controller. Neither the description had tallied nor the boundaries tallied." 5. The petitioner has not at all given any explanation as to why he has not challenged the order dated 12.8.2013, whereby his right to file objections had been closed and the only ground taken by the petitioner is that learned executing court has passed the order in a mechanical way without applying its judicial mind. The record bears testimony to the effect that the petitioner has been granted more than adequate opportunity to file objections from 13.3.2013 uptil 12.8.2013 and even when the right to file objections was closed, he did not chose to approach this court for a period of over sixteen months. It is only when the warrants of possession have been issued that the petitioner has approached this court that too only with the diabolical plan to deny the decree holder the fruits of the decree obtained by them. 6. Once the decree in favour of the petitioner was that of eviction and possession of the rented premises, then obviously the same could have only been executed by issuing warrants of possession and that is what the learned Executing Court has precisely done. Thus no illegality or infirmity can be found with the orders passed by the learned courts below and accordingly the present petition is dismissed. 7. Thus no illegality or infirmity can be found with the orders passed by the learned courts below and accordingly the present petition is dismissed. 7. The learned Executing Court is directed to execute the decree and take it to its logical end without any further undue delay and every endeavour shall be made to dispose of the execution petition by 15.5.2015.