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2016 DIGILAW 98 (UTT)

Jintendra Singh Sarna v. Gayasuddin @ Raju

2016-03-02

SERVESH KUMAR GUPTA

body2016
JUDGMENT : Servesh Kumar Gupta, J. 1. Heard Sri Sharad Sharma, learned Senior Counsel assisted by Smt. Indu Sharma, learned Counsel for the revisionist. 2. Supplementary affidavit, filed today in the Court, is accepted on the record. 3. Revisionist is decree holder. Unfortunately, he has been constrained to knock the door of this Court once again challenging the orders dated 16.2.2016 and 19.2.2016 passed by the learned Executing Court (Civil Judge, Senior Division, Nainital). Vide the impugned order dated 19.2.2016, the Court below refused to proceed with the execution of the decree without rendering opportunity of hearing to the respondent/judgment debtor. 4. It is pertinent to mention that an Original Civil Suit for possession was decreed by the Civil Judge (Sr. Div.), Nainital on 4.12.2013, where-against the First Appeal No. 7/2014, preferred by the judgment debtor, was dismissed on merits by this Court on 7.1.2016. After discussing such merits, this Court passed the stringent order in following terms:- “All told, this appeal has no force and it is hereby dismissed with costs all throughout. Mr. Gayasuddin is directed to hand over the possession at the earliest, but not later than three weeks from today, after removing all his unauthorized provisional constructions of tin-shed on the brick walls and the entire trash/waste materials on the spot, failing which the Executing Court will execute the decree invoking all coercive measures against him including the recovery of arrears of mesne profits, as directed in the judgment of the Trial Court as well as by this Court in its order dated 5.3.2015 enhancing the same to the rate of Rs. 2,000/- per month w.e.f. 1.3.2015.” 5. The aforesaid judgment of this Court was challenged by the judgment debtor before Hon’ble Apex Court by filing SLP No. 1980/2016. The Hon’ble Supreme Court did not find any force in that SLP and dismissed the same on 22.1.2016. Thereafter revisionist/decree holder moved the execution application on 16.2.2016. However, the Court below, instead of executing the decree, issued notice to the judgment debtor calling his response. Thereafter the decree holder/revisionist again moved an application on 19.2.2016 drawing the attention of the Court below towards the provisions contained under Order XXI Rule 22 of the Code of Civil Procedure and prayed to recall its earlier order dated 16.2.2016. However, the Court below, instead of executing the decree, issued notice to the judgment debtor calling his response. Thereafter the decree holder/revisionist again moved an application on 19.2.2016 drawing the attention of the Court below towards the provisions contained under Order XXI Rule 22 of the Code of Civil Procedure and prayed to recall its earlier order dated 16.2.2016. In paragraph 4 of the said application, the decree holder pleaded as under:- “That inadvertently the Honorable Court could not go through the provision of order 21 Rule 22 of C.P.C. and issued the notice to show-cause to the J.D. inspite of the fact, there is no mandatory requirement of notice to the J.D. in the matter like present one.” 6. Appalling enough, the Court below overlooked such contention/paragraph, as indicated above, and mentioned in the impugned order that the decree holder did not argue any clear provision mandating that there is no need to issue the notice to the judgment debtor in such matters where the provisions of Order XXI Rule 22 CPC are applicable. 7. In the opinion of this Court, the provisions of Order XXI Rule 22 CPC are perfectly applicable in the present controversy and, therefore, order for issuing the notice to the judgment debtor is definitely against the spirit and stringent letters, which this Court had passed while finally adjudicating the First Appeal No. 7/2014 on 7.1.2016 blended with provisions of Order XXI Rule 22 CPC. 8. In view of what has been set forth above, I allow this revision and quash the orders dated 16.2.2016 and 19.2.2016 passed by the Executing Court/Civil Judge (Sr. Div.), Nainital and direct it to ensure the execution of the decree within 48 hours from the date and time, the certified copy of this order is produced before that Court. SSP, Nainital will not lag behind in promptly sending the police force at the spot for executing the decree of the Court in its true letter and spirit. 9. Certified copy of this order shall be supplied to learned Counsel for the revisionist today itself on payment of the prescribed charges.