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2016 DIGILAW 749 (HP)

Jagat Ram v. Prem Lal

2016-05-11

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This petition has been instituted against Order dated 12.1.2015 rendered by the learned Civil Judge (Junior Division), Karsog, HP in Case No. 38/2014. 2. “Key facts" necessary for the adjudication of the present petition are that the petitioner-Decree Holder (hereinafter referred to as 'Decree Holder' for convenience sake) filed a civil suit No. 38 of 88 against the respondent-Judgment Debtor (hereinafter referred to as 'Judgment Debtor' for convenience sake). The suit was partly decreed by the learned trial Court. Decree Holder preferred an appeal before the Additional District Judge, Mandi. He allowed the appeal on 2.4.1994 and modified the judgment and decree rendered in Civil Suit No. 38/88 to the extent that apart from the relief of removal of slab projections as granted by the learned trial Court in favour of the plaintiff, he was held entitled to a decree for mandatory injunction directing the respondent to remove the construction on an area measuring 0-0-7 Bigha of land in Khasra No. 1139/206/1 as shown in Tatima Ext. P2 and further not to interfere with any part of Khasra No. 1139/2006 in any manner. Decree Holder filed an execution petition in the matter. Parties arrived at a compromise Ext. PA dated 28.10.1999. The Sub Judge 1st Class, Karsog passed a common order on 30.9.2002. Decree Holder assailed order dated 30.9.2002 by filing Civil Revision No. 75/2003. It was decided by this Court on 4.11.2008. Decree Holder again filed an execution petition which was registered as Execution Petition No. 3-X/2010. Executing Court on 29.6.2013 disposed of the execution petition directing the Judgment Debtor to remove the foundation wall within one month as per Order dated 30.9.2002. Judgment Debtor filed a Revision Petition against Order dated 29.6.2013 bearing CR No. 4043/2013. It was dismissed by this Court on 4.10.2013. Decree Holder was constrained to file another Execution Petition seeking detention of the Judgment Debtor for not complying Order dated 29.6.2013. Judgment Debtor filed reply to the execution petition. Executing court framed issues vide Order dated 12.1.2015. Decree Holder is aggrieved of Order dated 12.1.2015. Hence this petition. 3. It is evident from Order dated 29.6.2013 rendered in Execution Petition No. 3-X/2010 that the same is a detailed order. Learned Executing Court has framed the following issues: “1. Whether the J.D. has deliberately dis-obeyed the decree of the court if so its effect? OPA. 2. Relief? 4. Decree Holder is aggrieved of Order dated 12.1.2015. Hence this petition. 3. It is evident from Order dated 29.6.2013 rendered in Execution Petition No. 3-X/2010 that the same is a detailed order. Learned Executing Court has framed the following issues: “1. Whether the J.D. has deliberately dis-obeyed the decree of the court if so its effect? OPA. 2. Relief? 4. Issue No.1 was decided in favour of the Decree Holder. Petition was allowed as per operative part of the order. Executing Order has recorded statements of AW-1 Nokh Ram, AS-2 Hari Oam, AW-3 Dila Ram. Decree Holder has appeared as AW-4. He has led his evidence by filing affidavit Ext. PW-4/A. Judgment Debtor has appeared as RW-1. Learned executing Court after appreciating oral as well as documentary evidence passed a detailed order on 29.6.2013. He has given categorical findings that Judgment Debtor has not removed the foundation wall of latrine and again raised construction of latrine on the site, which was duly proved by the photographs. Order dated 29.6.2013 was upheld by this Court in CR No. 4043/2013 on 4.10.2013. Learned executing Court has again framed issues as per Order dated 12.1.2015, instead of ordering execution of the judgment and decree and order passed from time to time. This Court has already noticed that the executing Court in execution petition No. 3-X/2010 has specifically framed issue, whether Judgment Debtor has deliberately disobeyed the decree of the Court. However, fact of the matter is that, Judgment Debtor has, in fact, disobeyed the judgment and decree and orders passed by the executing court from time to time. In fact, Judgment Debtor was granted one month’s time to remove the latrine wall, which he has failed to do. Execution proceedings are to be decided expeditiously. Judgment Debtor has deliberately prolonged the proceedings, which has resulted in grave miscarriage of justice. The issue to be adjudicated upon by the executing court was that whether the Judgment Debtor should be sent to civil detention for willful disobedience of the judgment and decree and orders passed by various Courts from time to time, instead of framing issues and prolonging the proceedings. Order dated 29.6.2013 has attained finality after the same was upheld by this court in CR No. 4043/2013 on 4.10.2013. Order dated 29.6.2013 has attained finality after the same was upheld by this court in CR No. 4043/2013 on 4.10.2013. Learned executing Court below has failed to exercise powers vested in it and committed material illegality and irregularity by framing issues on 12.1.2015 instead of ordering civil detention of the Judgment Debtor. 5. Accordingly, the present petition is allowed. Order dated 12.1.2015 is set aside. Executing Court is directed to decide the execution petition within a period of three months from today. 6. Parties, through their counsel, are directed to appear before the executing Court on 24.5.2016. Pending applications, if any, are disposed of. No order as to costs.