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2016 DIGILAW 2406 (HP)

Rajiv Bansal son of late Shri Mohinder Kumar Bansal v. Mange Ram Chaudhary son of Shri Prittam Singh

2016-11-15

P.S.RANA

body2016
JUDGMENT : P.S. Rana, J. Present civil revision petition is filed under Section 115 of the Code of Civil Procedure 1908 against order passed by learned Executing Court dated 6.12.2013 and against order passed by learned Appellate Authority whereby learned Appellate Authority affirmed the order of learned Executing Court. Brief facts of the case 2. Decree holder namely Mange Ram filed civil suit No. 213/1 of 1991 title Mange Ram vs. Mohinder Kumar pleaded therein that judgment debtor has illegally raised the retaining wall upon the land of decree holder measuring 11 sq. metres. Mange Ram also filed civil suit No. 214/1 of 1991 title Mange Ram vs. Hem Lata pleaded therein that judgment debtor Hem Lata has encroached 8 sq. metres of land owned by decree holder. Decree holder sought relief of mandatory injunction in both civil suits and in alternate decree holder also sought relief of compensation. 3. Learned Trial Court clubbed civil suits No. 213/1 of 1991 and civil suit No. 214/1 of 1991 and disposed of both civil suits by way of common judgment. Learned Trial Court dismissed both civil suits filed by Mange Ram. Thereafter Mange Ram filed appeal before learned Appellate Court. Learned Appellate Court also dismissed both appeals filed by Mange Ram. Thereafter Mange Ram filed RSA No. 143 of 2002 title Mange Ram vs. Hem Lata and also filed RSA No. 144 of 2002 title Mange Ram vs. Mohinder Kumar Bansal (died) through LRs Vikas Bansal and others before Hon'ble High Court of H.P. Hon'ble High Court on 4.9.2012 disposed of both RSAs bearing Nos. 143 of 2002 and 144 of 2002 by way of common judgment. Hon'ble High Court of H.P. set aside the judgment and decree passed by learned Trial Court and Appellate Court and decreed both civil suits filed by Mange Ram. Hon'ble High Court of H.P. passed decree for compensation of Rs. one lac in civil suits No. 213/1 of 1991 and passed decree of compensation of Rs.75000/- (Rupees seventy five thousand) in civil suit No. 214/1 of 1991. 4. Thereafter decree holder filed execution petition before learned Trial Court. Judgment debtors filed objections before learned Executing Court and objections were dismissed 568 by learned Executing Court and thereafter order of learned Executing Court was affirmed by learned Additional District Judge Solan on 27.11.2014. 5. 4. Thereafter decree holder filed execution petition before learned Trial Court. Judgment debtors filed objections before learned Executing Court and objections were dismissed 568 by learned Executing Court and thereafter order of learned Executing Court was affirmed by learned Additional District Judge Solan on 27.11.2014. 5. Feeling aggrieved against order of learned Executing Court and learned Appellate Court revisionist/judgment debtor namely Rajiv Bansal filed present civil revision petition under Section 115 of Code of Civil Procedure 1908. 6. Court heard learned Advocate appearing on behalf of revisionist and learned Advocate appearing on behalf of non-revisionist No.1 and Court also perused entire record carefully. 7. Following points arise for determination in civil revision petition:- Point No.1 Whether revision petition filed under Section 115 of Code of Civil Procedure 1908 is liable to be accepted as mentioned in memorandum of grounds of civil revision petition? Point No.2 Relief. Findings upon point No.1 with reasons 8. Submission of learned Advocate appearing on behalf of revisionist that decree holder has flouted Section 118 of H.P. Tenancy and Land Reforms Act 1972 and on this ground revision petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that in RSA No. 144 of 2002 Mohinder Kumar died during pendency of RSA and thereafter his legal representatives were impleaded as co-party in RSA No. 144 of 2002 before Hon'ble H.P. High Court. It is also proved on record that Rajiv Bansal was also impleaded as legal representative of deceased Mohinder Kumar in RSA No. 144 of 2002 before Hon'ble High Court of H.P. Court is of the opinion that plea regarding violation of Section 118 of H.P. Tenancy and Land Reforms Act 1972 ought to be taken by revisionist in RSA No. 144 of 2002 because in RSA No. 144 of 2002 revisionist Rajiv Bansal was impleaded as co-party. RSA No. 143 of 2002 and RSA No. 144 of 2002 were finally disposed of by Hon'ble High Court of H.P. on 4.9.2012 by way of consolidated judgment and same attained the stage of finality. Revisionist did not file any SLP before Hon'ble Apex Court of India against judgment and decree passed by Hon'ble High Court of H.P. in RSA No. 143 of 2002 and RSA No. 144 of 2002. 9. Revisionist did not file any SLP before Hon'ble Apex Court of India against judgment and decree passed by Hon'ble High Court of H.P. in RSA No. 143 of 2002 and RSA No. 144 of 2002. 9. It is well settled law that learned Executing Court cannot question correctness or validity of decree except where decree is passed without jurisdiction and where decree is passed against dead person. Judgment debtor cannot be allowed to prevent decree holder from getting full benefit of decree. See AIR 2002 SC 2603 Narinder Singh vs. Kishan Singh. See AIR 1970 SC 1475 V.D. Modi vs. R.A.Rehman. See AIR 1962 SC 199 Hira Lal vs. Kali Ram. See AIR 1971 Bombay 91 E.T.G.U.S. Society vs. M/s S.W.Corporation. See AIR 1971 Delhi 319 H.Rahim-Ud-Din vs. Tirlok Singh. See AIR 1964 Punjab 311 Manohar Lal vs. Topan Ram. 10. It is well settled law that after amendment in CPC vide Act No. 104 of 1976 w.e.f. 1.2.1977 order passed under Section 47 by learned Executing Court is not decree as define in Section 2 (2) CPC. Section 47 of Code of Civil Procedure 1908 is omitted from definition of decree vide amendment No. 104 of 1976. See AIR 1987 Patna 33 (Full Bench) Narmada Devi vs. Ram Nandan Singh. 11. Submission of learned Advocate appearing on behalf of revisionist that grave miscarriage of justice has been caused to revisionist by learned Executing Court and further submission of learned Advocate appearing on behalf of revisionist that order of learned Executing Court is ipso facto contrary to law is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law High Court cannot reverse the findings of facts of learned Executing Court in revision petition unless findings of facts are perverse. See AIR 1991 SC 455 Masjid Kacha Tank Nahan vs. Tuffail Mohammed. See AIR 1969 SC 580 Municipal Corporation Indore vs. K.N. Palsikar. See AIR 1995 SC 1357 P.Udayani Devi vs. V.V.Rajeshwara Prasad Rao and another. See AIR 2002 SC 1004 Gurdial Singh vs. Raj Kumar Anjela. Hence it is held that orders of learned Executing Court is not perverse but is based upon judgment and decree passed by Hon'ble High Court of H.P. in RSA No. 143 of 2002 and RSA No. 144 of 2002 decided on 4.9.2012. See AIR 2002 SC 1004 Gurdial Singh vs. Raj Kumar Anjela. Hence it is held that orders of learned Executing Court is not perverse but is based upon judgment and decree passed by Hon'ble High Court of H.P. in RSA No. 143 of 2002 and RSA No. 144 of 2002 decided on 4.9.2012. In view of above stated facts and case law cited supra point No.1 is answered in negative. Point No. 2 (Relief) 12. In view of findings upon point No.1 revision petition is dismissed. Parties are left to bear their own costs. Record of learned Executing Court and learned Additional District Judge Solan be sent back forthwith along with certified copy of order. Revision petition is disposed of. All pending miscellaneous application (s) if any also disposed of.