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2016 DIGILAW 920 (HP)

Sukh Dev v. Rajpal

2016-05-25

RAJIV SHARMA

body2016
JUDGMENT : Justice Rajiv Sharma, J. This petition is directed against the orders dated 10.10.2012, 2.5.2014, 7.8.2014 and 15.1.2015, rendered by the learned Civil Judge (Jr. Divn.), Court No. 1, Dharamshala, Distt. Kangra, H.P., in Ex. Petition No. 19/1991. 2. “Key facts” necessary for the adjudication of this petition are that the predecessor-in-interest of the respondents, namely, Anant Ram has filed a Civil Suit bearing No. 205 of 1975 for declaration against the petitioners as well as proforma respondents on the basis of jamabandi for the year 1962-63. The suit was decreed by the learned trial Court on 30.7.1977. The judgment debtors and proforma respondents filed an appeal before the learned District Judge, Kangra at Dharamshala against the judgment dated 30.7.1977. The appeal preferred by proforma respondent Smt. Shakuntla was dismissed in default on 16.8.1980. The appeal preferred by judgment debtors was dismissed on merits on 16.8.1980 by the learned Addl. District Judge, Kangra at Dharamshala with a minor modification regarding Kh. No. 1836/619. The JDs also filed Regular Second Appeal before this Court. The Regular Second Appeal was dismissed by this Court on 9.3.1981. In the meantime, proforma respondent Smt. Shakuntla also filed application for restoration of the appeal. The appeal was restored and dismissed on merits on 25.11.1981. Smt. Shakuntla also filed Regular Second Appeal before this Court. It was dismissed on 2.9.1982. The decree holders filed execution petition before the learned trial Court for execution of the judgment and decree. The objections were also filed by the judgment debtors. These were dismissed on 30.7.1984. Civil Revision No. 107 of 1984 was preferred against the order dated 30.7.1984. It was also dismissed by this Court on 29.6.1984. Thereafter, the decree holders have filed execution petition No. 19 of 1991. The judgment debtors were proceeded ex-parte vide order dated 10.10.2012 by the learned Executing Court. The application was filed for setting aside the ex-parte order under Order 9 Rule 7 CPC read with Section 151 CPC. It was dismissed by the learned Executing Court on 7.8.2014 by a detailed order. The learned Executing Court has also allowed an application preferred by the decree holders under Order 26 Rule 9 CPC for appointment of the Local Commissioner. Sh. Ram Swaroop retired Kanungo was appointed as Local Commissioner with direction to visit the spot. It was dismissed by the learned Executing Court on 7.8.2014 by a detailed order. The learned Executing Court has also allowed an application preferred by the decree holders under Order 26 Rule 9 CPC for appointment of the Local Commissioner. Sh. Ram Swaroop retired Kanungo was appointed as Local Commissioner with direction to visit the spot. The learned Executing Court vide order dated 15.1.2015 has issued warrant of attachment of the property of judgment debtors /proforma respondents. Hence, this petition. 3. The Civil Suit was instituted by the predecessor-in-interest of decree holders in the year 1975. It was decreed on 30.7.1977. The learned Addl. District Judge, Kangra at Dharamshala dismissed the appeal preferred by judgment debtors with a minor modification qua Kh. No. 1836/619. The regular second appeal filed by Smt. Shakuntla was also dismissed on merits by the first appellate Court on 25.11.1981. Two Regular Second Appeals preferred against the judgments and decrees dated 9.3.1981 and 25.11.1981 were also dismissed by this Court. Thus, the judgment and decree dated 30.7.1977 has attained finality. The objections earlier preferred by the judgment debtors /proforma respondents were also dismissed by the learned Executing Court. Since, neither the judgment debtors nor the proforma respondents appeared before the learned Executing Court, they were proceeded against ex-parte on 10.10.2012. An application was filed for setting aside the ex-parte order dated 10.10.2013, however, the fact of the matter is that there was no ex-parte order dated 10.10.2013. In fact, the order was dated 10.10.2012. The application was filed after a gap of about one year and nine months. The application filed was beyond the prescribed period of limitation. No sufficient reasons have been shown for condonation of the delay. The order dated 7.8.2014 is speaking order and is in conformity with the law. 4. The learned Executing Court has also passed the order on 2.5.2014, whereby Sh. Ram Swaroop, Retd. Kanungo was appointed as Local Commissioner to visit the spot. There is no illegality or perversity in the order dated 2.5.2014. 5. Anant Ram has appeared as AW-1 in the Execution Petition. He gave reference to the judgment of the learned Sr. Sub Judge, Dharamshala dated 30.7.1977. According to him, the judgment debtors have cut the grass and also stacked construction material and thus the judgment debtors have violated the judgment and decree dated 30.7.1977. 5. Anant Ram has appeared as AW-1 in the Execution Petition. He gave reference to the judgment of the learned Sr. Sub Judge, Dharamshala dated 30.7.1977. According to him, the judgment debtors have cut the grass and also stacked construction material and thus the judgment debtors have violated the judgment and decree dated 30.7.1977. The statement of AW-1 Anant Ram has been corroborated by Prittam Chand, AW-2. According to him, judgment debtors have raised construction of their house in the suit land. They were also cutting trees and grass. Similarly, Amar Singh, AW-3 testified that Anant Ram was owner-in-possession of the suit land. Chuha along with his family members has raised the construction of the house on the suit land and construction material was also stacked. 6. Local Commissioner, Ram Swaroop has filed the report. According to the report, judgment debtors/proforma respondents have raised the construction over the suit land in breach of decree dated 30.7.1977. The Local Commissioner has visited the spot and thereafter furnished the report. The judgment debtors /proforma respondents were proceeded against ex-parte. The decree holders have conclusively proved that judgment debtors and proforma respondents have disobeyed the judgment and decree of the Court dated 30.7.1977. 7. Mr. Suneet Goel, Advocate has also made reference to Regular Second Appeal No. 408 of 2011. However, the fact of the matter is that on 24.12.2014, this Court has clarified that the orders passed by this Court on various dates would not affect the pendency of the execution petition. 8. Thus, in view of the circumstances discussed hereinabove, there is no illegality or perversity in the orders dated 10.10.2012, 2.5.2014, 7.8.2014 and 15.1.2015. 9. Accordingly, there is no merit in this petition and the same is dismissed, so also the pending applications, if any. No costs.