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2015 DIGILAW 653 (HP)

Rikhikesh v. Om Parkash

2015-06-03

P.S.RANA

body2015
Order Present revision is filed against the order dated 15.1.2015 passed by learned Civil Judge (Senior Division) Mandi in Execution Petition No. 223 of 2013 titled Om Parkash vs. Rikhikesh. 2. Brief facts of the case as pleaded are that Om Parkash filed execution petition under Order 21 Rule 32 CPC against revisionist pleaded therein that counter claim No. 43 of 2008 filed in Civil Suit No. 53 of 2003 was decreed by learned trial Court on dated 2.8.2008 and thereafter appeal was filed and learned Additional District Judge FTC Mandi District Mandi affirmed the judgment and decree passed by learned trial Court and dismissed the civil appeal No. 53 of 2008 on dated 21.2.2012 titled Rikhikesh vs. Om Parkash. It is pleaded that Rikhikesh filed a suit for partition and injunction relating to suit land. It is pleaded that suit filed by plaintiff was resisted and contested by defendant by way of filing written statement and by way of filing counter claim. Counter claim was filed for specific performance of contract dated 27.11.1996. It is pleaded that learned trial Court dismissed the civil suit and decreed the counter claim No. 43 of 2008. It is pleaded that Rikhikesh did not comply the judgment and decree passed by learned trial Court and affirmed by learned first Appellate Court and prayer for execution of judgment and decree passed by learned trial Court and affirmed by learned first Appellate Court sought by way of filing execution petition. It is proved on record that thereafter Rikhikesh filed objections under Section 47 of CPC in execution petition pleaded therein that execution petition is not maintainable and is not executable. It is pleaded that relinquish deed could only be executed by relative as per instructions of the Government and further pleaded that Om Parkash and Rikhikesh are not relatives but are only co-sharers and hence decree passed by learned trial Court could not be executed. It is pleaded that judgment and decree could not be executed by way of appointing the Reader. Prayer for acceptance of objection petition sought before Executing Court. 3. Per contra reply filed to the objections petition on behalf of Om Parkash pleaded therein that execution petition is maintainable and decree passed by learned trial Court is executable. It is pleaded that instructions issued by the Government could not override statute. It is pleaded that deficient court fee already stood deposited. 3. Per contra reply filed to the objections petition on behalf of Om Parkash pleaded therein that execution petition is maintainable and decree passed by learned trial Court is executable. It is pleaded that instructions issued by the Government could not override statute. It is pleaded that deficient court fee already stood deposited. It is pleaded that decree could be executed by way of appointing Reader of Court to execute the decree and prayer for dismissal of objections petition sought in execution petition. 4. Thereafter learned trial Court on dated 15.1.2015 dismissed the objections filed by objector under Section 47 of CPC and appointed the Reader of Court to execute the decree passed by learned trial Court. Feeling aggrieved against the order passed by learned trial Court dated 15.1.2015 revisionist filed the present revision petition. 5. Court heard learned Advocate appearing on behalf of the revisionist and learned Advocate appearing on behalf of the non-revisionist and also perused the record carefully. 6. Following points arise for determination in this revision petition:- 1. Whether revision petition filed by revisionist under Section 115 of CPC is liable to be accepted as mentioned in memorandum of grounds of revision petition? 2. Final Order. Findings on Point No.1 7. Submission of learned Advocate appearing on behalf of revisionist that in view of instructions issued by Financial Commissioner Himachal Pradesh to the Registration Officers judgment and decree passed by learned trial Court and affirmed by learned first Appellate Court could not be executed is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that Rikhikesh filed civil suit No. 53 of 2008 titled Rikhikesh vs. Om Parkash for partition and injunction. It is also proved on record that thereafter Om Parkash filed the counter claim No. 43 of 2008 pleaded therein that Rikhikesh had executed an agreement dated 27.11.1996 in favour of Om Parkash. It is proved on record that learned trial Court dismissed the suit filed by Rikhikesh and decreed the counter claim filed by Om Parkash. It is proved on record that thereafter Rikhikesh filed civil appeal No. 53 of 2008 and same was disposed of by learned Additional District Judge Fast Track Court Mandi on dated 21.02.2012 titled Rikhikesh vs. Om Parkash. Learned first Appellate Court framed following points for determination. It is proved on record that thereafter Rikhikesh filed civil appeal No. 53 of 2008 and same was disposed of by learned Additional District Judge Fast Track Court Mandi on dated 21.02.2012 titled Rikhikesh vs. Om Parkash. Learned first Appellate Court framed following points for determination. (1) Whether plaintiff being joint owner and in joint possession of suit land is entitled to the partition of the suit land and to the equitable relief of injunction. (2) Whether there is a lawful agreement dated 27.11.1996 Ext.DA inter se the parties and the plaintiff agreed to relinquish his share in the suit land in favour of the defendant as the defendant has agreed to construct a retaining wall for the protection of the plaintiffs land. (3) Whether impugned judgment and decree dated 2.8.2008 passed by learned trial Court are liable to be set aside. It is proved on record that thereafter learned first Appellate Court decided point No. 1 and 3 against Rikhikesh and decided point No. 2 in favour of Om Parkash. Learned first Appellate Court dismissed the appeal filed by Rikhikesh. It is proved on record that judgment and decree passed by learned trial Court and affirmed by learned first Appellate Court attained the stage of finality. There is no evidence on record in order to prove that judgment and decree passed by learned trial Court and affirmed by learned first Appellate Court were set aside by Hon’ble High Court of H.P. in RSA. Both learned trial Court and learned first Appellate Court have held that lawful agreement dated 27.11.1996 Ext.DA was executed inter se the parties and both Court held that Rikhikesh had agreed to relinquish his share in the suit land in favour of Om Parkash. It is also proved on record that Om Parkash agreed to construct a retaining wall for protection of plaintiff’s land. There is recital in order sheet of learned Civil Judge (Senior Division) Mandi dated 25.3.2015 that relinquishment deed already stood executed and learned Advocate appearing on behalf of Om Parkash had given the statement that counter claim decree has been duly satisfied and he intended to withdraw the execution petition as fully satisfied. Statement was given by learned Advocate on dated 25.3.2015 before the Executing Court. Statement was given by learned Advocate on dated 25.3.2015 before the Executing Court. It is held that judgment and decree passed by learned trial Court and affirmed by learned first Appellate Court could not be nullified by way of administrative instructions issued by Under Secretary (Revenue) Government of H.P. It is held that judgment and decree passed by learned trial Court and affirmed by learned first Appellate Court could be set aside only by Hon’ble High Court of H.P. in RSA or by Hon’ble Supreme Court of India in SLP. There is no evidence on record in order to prove that judgment and decree passed by learned trial Court and affirmed by learned first Appellate Court were set aside by Hon’ble High Court of H.P. in RSA or were set aside by Hon’ble Supreme Court of India in SLP. In view of above stated facts it is held that there is no illegality and irregularity in the order of learned Executing Court. It is further held that learned Executing Court had not failed to exercise the jurisdiction so vested in learned Executing Court. It is held that learned Executing Court had not exercised the jurisdiction not vested in learned Executing Court by law. It is further held that learned Executing Court has passed the order in accordance with law. In view of above stated facts, point No. 1 is answered in negative against the revisionist. Point No.2 (Final Order) 8. In view of my findings on point No.1 revision petition is dismissed. Order of learned Executing Court is affirmed. All pending application(s) if any also disposed of. No order as to costs File of learned Executing Court be sent back along with certified copy of this order forthwith. Civil Revision petition is disposed of.