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2019 DIGILAW 1101 (HP)

Bishamber Singh v. Rajinder Singh

2019-08-06

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. 1. By way of this petition, petitioners have prayed for setting aside of order dated 31.10.2018 (Annexure P-4), passed by learned Civil Judge (Jr. Division), Indora, District Kangra, H.P. vide which learned Executing Court has dismissed the objections so filed by the present petitioners to the execution petition. 2. It appears from the record that respondent herein filed a civil suit bearing No. 156/2007, titled as Rajinder Singh versus Bishamber Singh and other for issuance of a decree of possession of the suit land. Said suit was decreed in favour of the plaintiff on 28.03.2011. The appeal filed against the judgment and decree passed by the learned Trial Court was dismissed by the learned First Appellate Court on 30.04.2013 and the second appeal preferred against the judgment and decree so passed by learned Appellate Court, was dismissed by this Court on 01.03.2017. 3. As despite the judgment and decree passed by the learned Trial Court in favour of the plaintiff/decree holder having attained finality, the same was not being obeyed by the judgment debtors, i.e. present petitioners, an execution petition was filed by the decree holder before the Executing Court. 4. In the said execution petition, objections were filed by the present petitioners, which stand dismissed by way of the impugned order. While dismissing the objection filed by the present petitioners, learned Executing Court has held that as per record the judgment and decree dated 28.03.2011, passed by learned Trial Court in Civil Suit No. 156 of 2007, vide which, a decree was passed in favour of the decree holder for possession as a co-sharer qua the suit land comprised in Khasra No. 1006, measuring 0-01-16 HM, situated in mohal and mauza Bhapoo, Tehsil Indora, District Kangra, HP, had attained finality. Learned Executing Court further held that it was apparent from the record that decree holder has having a executable decree in his favour and the execution petition was also quite old. It further held that as the objections filed by the judgment debtors were not substantiated by any cogent and reliable material on record, the same were not sustainable. On these bases, learned Executing Court dismissed the objections and issued the warrant of possession. 5. Feeling aggrieved of the said order, petitioners/judgment debtors filed the present petition. 6. It further held that as the objections filed by the judgment debtors were not substantiated by any cogent and reliable material on record, the same were not sustainable. On these bases, learned Executing Court dismissed the objections and issued the warrant of possession. 5. Feeling aggrieved of the said order, petitioners/judgment debtors filed the present petition. 6. I have heard learned Counsel for the parties and also gone through the impugned order as also the other documents appended with the petition. 7. When this case was listed on the previous dates, time was sought by learned Counsel for the petitioners to enable the petitioners to make an endeavour to have the matter amicably settled with the respondent. Despite sufficient opportunities having been granted in this regard, nothing fruitful has come forth till date. 8. Be that as it may, taking into consideration the arguments advanced by learned Counsel for the parties, in my considered view, there is no perversity in the impugned order. It is not in dispute that decree which has been passed in favour of present respondent has attained finality. It is a matter of record that judgment and decree passed by the Court of learned Civil Judge (Jr. Divn.), Indora, District Kangra, H.P. was unsuccessfully assailed by the judgment debtors firstly before the learned First Appellate Court and thereafter before this Court by way of Regular Second Appeal. The findings returned by the learned Executing Court in the impugned order that there was a executable decree in favour of the decree holder, are correct findings. In my considered view, simply because some proceedings initiated by the present petitioners against the respondent under the Land Revenue Act, are pending before Divisional Commissioner, Kangra at Dharamshala, the same cannot be a ground to throttle the execution of a decree which exists in favour of the decree holder and which has attained finality. Learned Executing Court is duty bound to execute the decree passed by the Civil Court and pendency of any collateral proceedings between the parties before the quasi judicial authorities, cannot be used as a tool by the judgment debtors to delay the execution of the decree. 9. In view of findings returned above, as there is no merit in the present petition, the same is accordingly dismissed. Interim order stands vacated. Miscellaneous applications, if any, also stand disposed of accordingly.