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2016 DIGILAW 898 (HP)

Raj Kumar v. Dev Raj

2016-05-24

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. The present petition has been filed against Orders dated 16.5.2015 and 9.9.2015 rendered by the learned Civil Judge (Senior Division), Nadaun, District Hamirpur, Himachal Pradesh in Execution Petition No. 67/1998 RBT No. 8/2003. 2. “Key facts" necessary for the adjudication of the present petition are that respondent No.1-Decree Holder (hereinafter referred to as 'Decree Holder' for convenience sake) filed a suit for permanent prohibitory injunction restraining the petitioner/Judgment Debtor and proforma respondent No. 2/Judgment Debtor (hereinafter referred to as 'Judgment Debtor(s)' for convenience sake) from raising Gobar gas plant and any other sort of construction adjoining to the house of the Decree Holder shown in site plan as ‘ABCD’ over the land detailed in the plaint. It was also prayed that if the Judgment Debtors succeed in constructing Gobar gas plant adjoining to the house of Decree Holder, during the pendency of the suit, they may be directed by way of mandatory injunction to restore the original position by dismantling the Gobar gas plant. The parties compromised the suit as per Order date 16.6.1993, which reads as follows: “Case taken up for conciliation and through conciliation, both the parties have entered into compromise. Both the parties have agreed that they would not raise any construction of any nature on any part of the suit land till the same partitioned. The defendant in his statement separately recorded has also undertaken not o raise any ‘Gover’ plant in the suit land till the dame is partitioned. In view of the statements of the parties, which shall form part of the decree, the suit of the plaintiff is decreed with no orders as to costs. A decree sheet be drawn and file after completion be consigned to the record room.” 3. Parties had agreed that they will not raise any construction over the suit land till the same was partitioned. Decree Holder was constrained to move an application under Order 21 rule 32 CPC for enforcement of Order dated 16.6.1993 rendered in Civil Suit No. 174/1992. According to the Decree Holder, Judgment Debtors started raising construction over the suit land in the form of tin shed. Judgment Debtors filed reply to the same. Rejoinder was filed by the Decree Holder. Decree Holder was constrained to move an application under Order 21 rule 32 CPC for enforcement of Order dated 16.6.1993 rendered in Civil Suit No. 174/1992. According to the Decree Holder, Judgment Debtors started raising construction over the suit land in the form of tin shed. Judgment Debtors filed reply to the same. Rejoinder was filed by the Decree Holder. Civil Judge (Junior Division) decided the petition No. 67/1998 on 10.3.2010 and ordered the Judgment Debtors to restore the nature of the suit land by demolishing the tin posh shed and any other construction raised by them over the suit land specified by the local commissioner in site plan Ext. AW-2/B within 15 days. Judgment Debtors filed an application/undertaking for removal of temporary structure/shed. Civil Judge (Junior Division) passed Order dated 17.4.2010 and again ordered the Judgment Debtors to remove the construction of tin shed as per site plan Ext. AW-2/B within 15 days. 4. Decree Holder appeared as AW-1. According to him, suit land was joint and issue of partition has not attained finality. In the month of March 1998, Judgment Debtors constructed a shed on the suit land. Local Commissioner intimated the date of visit to the parties. 5. Ajay Thakur has appeared as AW-2. He was appointed as local commissioner. He has visited the spot on 30.9.2002. He submitted report Ext. AW-2/E. Objections were filed by the Judgment Debtors against the report. Objections were considered in accordance with law by the executing court. 6. One of the Judgment Debtors, Amrit Lal appeared as RW-1. In his cross-examination, he admitted that he has constructed a Tin shed over the suit land for tethering buffalos and the height was four feet. He had knowledge of Ext. P-2 (decree) and Ext. PW-3 (undertaking given by him that he would not raise any construction over the suit land). 7. Judgment Debtors assailed order dated 17.4.2010 by filing CR No. 38/2010 in this Court. Civil Revision was dismissed by the Court on 22.8.2013. Judgment Debtors filed an SLP against Judgment dated 22.8.2013. The Hon'ble Supreme Court was pleased to dismiss the same. Thereafter, learned Civil Judge (Junior Division) passed Order dated 16.5.2015 and warrant of arrest was ordered to be issued against the petitioner Raj Kumar. Thereafter, the learned Civil Judge (Junior Division) passed another order on 9.9.2015. Judgment Debtors filed an SLP against Judgment dated 22.8.2013. The Hon'ble Supreme Court was pleased to dismiss the same. Thereafter, learned Civil Judge (Junior Division) passed Order dated 16.5.2015 and warrant of arrest was ordered to be issued against the petitioner Raj Kumar. Thereafter, the learned Civil Judge (Junior Division) passed another order on 9.9.2015. Learned advocate appearing on behalf of the petitioner filed Power of Attorney on his behalf. He also filed an application under Section 151 CPC. However, fact of the matter is that as per Order dated 9.9.2015, petitioner has not surrendered before the Court. Non-bailable warrants issued against him were received back unexecuted. The Executing Court has ordered execution of the non-bailable warrants against the petitioner by an officer not below the rank of ASI for 14.10.2015. 8. Civil Suit No. 174/1992 was compromised on 16.6.1993. Judgment Debtors have raised construction in the year 1998. Execution Petition No. 67/1998 RBT No. 8/2003 was filed by Decree Holder. Order dated 17.4.2010 has attained finality since SLP against the dismissal of Civil Revision by this Court, also stands dismissed. 9. Petitioner has not surrendered before the Court. Non-bailable warrants were received back unexecuted. It is in these circumstances, that the executing Court was constrained to direct non-bailable warrants to be executed by an officer not below the rank of ASI for 14.10.2015. Civil Suit was instituted in 1992. Judgment Debtors have not removed the construction raised by them. Orders dated 16.5.2015 and 9.9.2015 are in conformity with law. There is neither any perversity nor any illegality in the orders passed by the executing Court. 10. Accordingly, there is no merit in the present petition and the same is dismissed. Pending applications, if any, are disposed of. Interim order 12.10.2015 is vacated. Parties through their counsel are directed to appear before the learned executing Court on 16.6.2016. Executing Court is directed to ensure execution of judgment and decree dated 16.6.1993 in their letter and spirit within a period of three months from today.