Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 1008 (HP)

Bhagat Ram v. Tilak Raj

2017-08-31

AJAY MOHAN GOEL

body2017
JUDGMENT Ajay Mohan Goel, J. - By way of this revision Petition, the Petitioner has prayed for quashing of order, dated 20.03.2007, passed by the learned Executing Court in Execution No. 8 of 2001, vide which an application filed by the Petitioner/judgment debtor under Order 21 Rule 32 of the Code of Civil Procedure was dismissed by the learned Executing Court. 2. Brief facts necessary for the adjudication of the present Petition are that the Petitioner before this Court filed a suit for permanent injunction against the father of present respondents, namely, Sh. Duni Chand on the ground that Petitioner/plaintiff was owner in possession of land comprised in field Nos. 726 and 727, Khata Khatauni No. 105/122, situated in Pargana Sherpur, Tehsil Dalhousie, District Chamba, H.P., which suit was decreed on 25.11.1999 and defendant therein was restrained from interfering in any manner or raising any sort of construction over the suit land. The judgment and decree so passed by the Court of learned Sub Judge 1st Class, Dalhousie, District Chamba in Civil Suit No. 03.1994, dated 25.11.1999 attained finality. Petitioner herein filed an application under Order 21 Rule 32 (supra) to the effect that he had filed a suit for permanent injunction and in the alternative for possession against Sh. Duni Chand, father of judgment debtor, which stood decreed on 25.11.1999. As per the Petitioner, after passing of the judgment and decree, respondents had opportunity of obeying the decree, but they did not do so and on 30.04.2001, the judgment debtors/respondents again started interfering in the peaceful possession of the decree holder after the death of Duni Chand. In this background, the following prayer was made in the application so filed before the learned Executing Court: "4. That in the interest of justice it is therefore respectfully prayed that judgment debtors/respondents may kindly be defamed in civil prison and their immovable property comprised in Khasra Nos.132,1261,1262 Khata Khatauni No. 33/33 situated in Mohal Sherpur, Pargna Sherpur Tehsil Dalhousie Distt. Chamba be ordered to be attached and sold and possession of disputed property comprised in Khasra Nos. 726, 727 Khata Khatauni No. 105/122 situated on Mohal Sherpur, Pargna Sherpur, Tehsil Dalhousie be restored to decree holder by issuing warrant of possession as ratio laid down by Hon''ble High Court Pubjab and Haryana u/o 21 Rule 32 CPC read with Section 151 CPC. 726, 727 Khata Khatauni No. 105/122 situated on Mohal Sherpur, Pargna Sherpur, Tehsil Dalhousie be restored to decree holder by issuing warrant of possession as ratio laid down by Hon''ble High Court Pubjab and Haryana u/o 21 Rule 32 CPC read with Section 151 CPC. An affidavit in support of application is attached herewith." 3. The application was resisted by the present respondents, who by way of reply so filed to the application, took a preliminary objection that the application was not maintainable, as the decree stood passed against late Sh. Duni Chand, i.e., their predecessor-ininterest and hence no relief of possession could be given qua them in the execution proceedings. On merit, their stand was that the decree holder was not in possession of the suit land and in fact their father was in possession of the suit land since 1991 and had also constructed a house over the suit land and as decree holder was never in possession of the suit land, therefore, he was not entitled for any relief, as was prayed for in application under Order 21 Rule 32 of the Code of Civil Procedure. 4. On the basis of the respective pleadings of the parties, learned Executing Court framed the following issues: "1. Whether respondents have willfully disobeyed the decree dated 25.11.1999 as alleged? OPA. 2. Whether DH is entitled for possession of disputed property as alleged? OPA. 3. Whether application is not maintainable in the present form as alleged? OPR. 4. Relief." 5. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned Executing Court on the issues so framed: "Issue No. 1: No. Issue No. 2: No. Issue No. 3: Yes. Relief: Application is dismissed as per operative part of the order. 6. While dismissing the application, it was held by the learned Executing Court that perusal of judgment Ex. A1 revealed that the decree holder had filed a suit for permanent injunction against Duni Chand with alternative plea for possession in case he was dispossessed during the pendency of the suit and though the suit for permanent injunction was decreed, however, no relief qua alternative plea for possession was granted. A1 revealed that the decree holder had filed a suit for permanent injunction against Duni Chand with alternative plea for possession in case he was dispossessed during the pendency of the suit and though the suit for permanent injunction was decreed, however, no relief qua alternative plea for possession was granted. It was further held by the learned Executing Court that decree holder had filed a suit for possession against Duni Chand and said suit for possession was withdrawn by the decree holder. Learned Executing Court also held that in the application, it was nowhere pleaded that the decree holder was dispossessed by the respondents after the passing of judgment and decree. Learned Executing Court observed that decree holder had pleaded that repeated interference by respondents over the suit land amounted to dispossession. Learned Executing Court further held that in the application, the decree holder had simply pleaded that respondents were causing interference in his peaceful possession, however, no details of said violation were given. It was further held by the learned Executing Court that in order to prove violation of order of injunction, the decree holder was required to prove details of violation strictly, which onus the decree holder had failed to discharge. On these bases, it was held by the learned Executing Court that the application was not maintainable and the same was dismissed. 7. Feeling aggrieved, the decree holder has filed the present Petition. 8. I have heard the learned counsel for the parties and have also gone through the records of the case. 9. A perusal of the judgment and decree, execution of which was sought by the present Petitioner before the learned Executing Court, demonstrates that learned trial Court had decreed the suit of the plaintiff by restraining the defendant therein from interfering in any manner or raising any sort of construction over the suit land comprised in land measuring 1 bigha and 1 biswa, bearing Khata/Khatauni No. 105/122, Khasra Nos. 726 and 727, situated in village Sherpur, Tehsil Bhatiyat, District Chamba. Now, it is not in dispute that the judgment and decree so passed by the learned trial Court has attained finality. It is also not in dispute that Duni Chand, who was the defendant before the learned trial Court, is the father of the present respondents. 726 and 727, situated in village Sherpur, Tehsil Bhatiyat, District Chamba. Now, it is not in dispute that the judgment and decree so passed by the learned trial Court has attained finality. It is also not in dispute that Duni Chand, who was the defendant before the learned trial Court, is the father of the present respondents. Application so filed under Order 21 Rule 32 of the Code of Civil Procedure by the decree holder before the learned Executing Court was inter alia on the allegations that despite there being judgment and decree in his favour, the respondents were interfering in the peaceful possession of the decree holder after the death of their father, namely, Sh. Duni Chand. 10. Now interestingly, a perusal of the reply so filed by the present respondents to the said application demonstrates that they have not disputed the factum of their interfering over the suit land, as was alleged in the application by the decree holder. However, they have tried to justify their conduct on the ground that the suit land was never in possession of the decree holder, but was in possession of their father since 1991, over which one house also stood constructed in the year 1991. It is settled law that an Executing Court cannot go behind the decree. Decree passed in favour of the present Petitioner by the learned trial Court was to the effect that defendant therein, who happened to be the father of the present respondents was restrained from interfering in any manner or raising any sort of construction over the suit land. The judgment and decree so passed by the learned trial Court was not challenged by the father of the present respondents. In other words, the findings returned by the learned trial Court to the effect that it was the Petitioner/plaintiff, who was in possession over the suit land qua which the father of the present respondents was injuncted from causing interference were accepted by him. Further, it is not even the case of the present respondents that they have not entered into the footsteps of their father as far as the suit land is concerned and they are in possession of the same in their own capacity. 11. Further, it is not even the case of the present respondents that they have not entered into the footsteps of their father as far as the suit land is concerned and they are in possession of the same in their own capacity. 11. As already taken note of by me above, the respondents are not disputing the factum of their interfering over the suit land, but as per them, the suit land since 1991 was in possession of their father, i.e., the original judgment debtor and it is on this ground that they had prayed for rejection of the application so filed under Order 21 Rule 32 of the Code of Civil Procedure (supra) by the decree holder. In my considered view, learned Executing Court while dismissing the application so filed by the decree holder by holding that the decree holder had failed to discharge the onus of proving that the respondents were interfering in his peaceful possession, erred in not appreciating that the factum of respondents interfering in the suit land was not denied by the respondents themselves. Not only this, it is apparent from perusal of the impugned order that what weighed with the learned Executing Court was the fact that probably it was not the decree holder who was in possession of the suit land, but the suit land was in fact in possession of the respondents. This is evident from a perusal of the findings so returned in para-11 of the impugned order by the learned Executing Court. In my considered view, while arriving at the findings as are contained in para-11 of the impugned order, learned Executing Court erred in not appreciating that once there was a decree passed by a competent Court of law in favour of the present Petitioner restraining the predecessor-in-interest of the present respondents from causing any interference over the suit land, then respondents could not have had justified their act of interfering over the suit land by taking the plea that decree holder was not in possession of the suit land. Once it stood established before the learned Executing Court, especially in view of the stand so taken by the respondents themselves in their reply that interference was being caused by the respondents over the suit land, the Executing Court ought to have passed appropriate orders for execution of the decree, which was so passed by the learned trial Court in favour of the decree holder. Therefore, in my considered view, the impugned order is not sustainable in the eyes of law and the same is liable to be quashed and set aside. 12. Accordingly, the Petition is allowed. Impugned order, dated 20.03.2007, passed by the Court of learned Civil Judge (Senior Division), Dalhousie in Execution No. 8 of 2001 is quashed and set aside. Matter accordingly stands remanded to the learned Executing Court with a further direction to proceed in the execution proceedings for having the decree dated 25.11.1999, so passed by the learned trial Court in Civil Suit No. 3 of 1994, titled Bhagat Ram vs. Sh. Duni Chand and another executed in accordance with law, after issuing notices to the parties concerned and hearing them. No order as to costs.