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2020 DIGILAW 163 (UTT)

SHIV KUMAR v. GURDEEP KAUR

2020-03-02

SHARAD KUMAR SHARMA

body2020
JUDGMENT Hon'ble Sharad Kumar Sharma, J. 1. The petitioners of the present Writ Petition have given challenge to the impugned order dated 23rd July, 2019, as passed by Civil Judge (Junior Division), Haridwar in Misc. Case No. 21 of 2018, Gurdeep Kaur Vs. Shiv Kumar and others. As a consequence of passing of the impugned order under challenge, the learned Trial Court had allowed the Misc. Case No. 21 of 2018, as preferred by respondent No.1, and as a consequence thereto, the learned Trial Court had allowed the Application, Paper No.53-C2, which has been preferred by respondent No.1 on 10th July, 2019, for the purposes of summoning the Naib Tehsildar to record his oral evidence in order to prove his report dated 7th April, 2015, i.e. Paper No. 57-C2, which was submitted by him before the Executing Court, which was dealing with the Execution Case No. 10 of 2010, putting a decree of 15/12/1980, into execution. 2. Brief facts of the case are that the predecessors of the petitioners as well as that of respondent No. 2 to 7 had filed a Suit No12 of 1972 Lala Hukum Chand and others v/s Sardar Daleep Singh, before the court of Munsif Roorkee, District Saharanpur (as it then was), being a Suit for declaration as well as for the grant of a decree of permanent injunction, in relation to the property, which was more appropriately defined as the property lying in khasra No. 2772, having an area of 5 biswas, which in accordance with the bandobasti entry was recorded in khewat No. 71, lying in Village Ahmedpur, Karach, Mahal Gardiyan, Pargana Jwalapur, Tehsil Roorkee, District Saharanpur (as it then was). The Suit, in question, thus preferred by the predecessors of the petitioners and that of respondent nos. 2 to 7, which was registered as Original Suit No. 12 of 1972. The said Suit, as preferred by the predecessors of petitioners was decreed by the Court of Munsif, Roorkee, (then District Saharanpur) now District Haridwar, vide its judgment dated 15th December 1980. 3. Being aggrieved against the said order/judgement, Sardar Dilip Singh, i.e. the predecessors of the husband of respondent No.1, i.e. Mr. Jitendra Pal Singh, had preferred a Civil Appeal, being Civil Appeal No. 6 of 1981 Sardar Daleep Singh and others v/s Lala Hukum Chand and others, which was allowed by the Appellate Court by the judgement dated 6 October, 1983. Being aggrieved against the said order/judgement, Sardar Dilip Singh, i.e. the predecessors of the husband of respondent No.1, i.e. Mr. Jitendra Pal Singh, had preferred a Civil Appeal, being Civil Appeal No. 6 of 1981 Sardar Daleep Singh and others v/s Lala Hukum Chand and others, which was allowed by the Appellate Court by the judgement dated 6 October, 1983. 4. The said judgment as rendered by the First Appellate Court allowing the regular appeal on 6 October, 1983, was put to challenge by the decree holder/ plaintiffs of the Suit late Mr. Lala Hukam Chand and others in Second Appeal No. 3206 of 1983 Lala Hukum Chand and others v/s Sardar Daleep Singh and others, as preferred before High Court of Judicature at Allahabad. 5. On creation of the State of Uttarakhand, the said Second Appeal No. 3206 of 1983, was transferred to the High Court of State of Uttarakhand at Nainital and was renumbered as Second Appeal No. 1486 of 2001 Lala Hukum Chand and others v/s Sardar Daleep Singh and others. The said Second Appeal, thus numbered as Second Appeal No. 1486 of 2001, was finally taken up by Coordinate Bench of this Court and by the judgement dated 17.07.2007, the Second Appeal was allowed and, as a consequence thereto, the first Appellate Court's judgement and decree dated 6thOctober,1983, as rendered in Civil Appeal No.6 of 1981 Sardar Daleep Singh and others v/s Lala Hukum Chand and others was reversed upholding the judgement and decree dated 15th December 1980, as rendered by the court of Munsif Roorkee, in Original Suit No. 12 of 1972 Lala Hukum Chand and others v/s Sardar Daleep Singh and others, decreeing the original sut for declaring plaintiff as to be owner of the disputed land and also decreed the suit for possession. 6. The Second Appellate Court, while adjudicating upon the Second Appeal, has recorded the followings finding in para 11 and 12 of the said judgement, which are quoted hereunder : “(11) For the reasons, as discussed above, this Court is of the view that the lower appellate Court has erred in law by setting aside the decree passed by the trial court on the ground that disputed Plot No. 2772 is not surveyed or that it is not identifiable. (12) Therefore, the second appeal deserves to be allowed. The second appeal is allowed. (12) Therefore, the second appeal deserves to be allowed. The second appeal is allowed. The suit is decreed, as prayed by the plaintiffs for dispossession of the defendant and injunction. However, in the interest of justice defendant Daleep Singh is allowed to remove his possession within a period of two months, failing which, the plaintiffs will be at liberty to get the decree executed through the Court. No order as to costs." 7. As a consequence of the judgment rendered by the Second Appellate Court on 17.07.2007, the Second Appellate Court has specifically recorded a finding, that as far as the property, in question, is concerned, that was identifiable and the sole basis of challenging the First Appellate Court's that the property was not identifiable, in question, was not sustained and finding recorded by the Trial Court regarding the land being identifiable was upheld. 8. Seeking review of the judgement dated 17.07.2007, the defendant had filed a Review Application before the Coordinate Bench of this Court and the Coordinate Bench by the judgement dated 9th August, 2007, had rejected the Review Application and consequently had affirmed the finding recorded by the Second Appellate Court in its judgement dated 17/7/2007, and particularly, a reference may be had to para 6 and 7 of the judgement rendered in Review Application preferred by the respondent. Even in, the Second Appellate Court's judgement, has yet again had recorded a finding that as far as the property in question is concerned, that was specifically identifiable and hence, there was no necessity as such to consider and pass an order impugned on the application, Paper No. 53-C2, as preferred by the respondents. Particularly a reference may be had also to the judgment recorded in para 8 and 9 of the judgment dated 17. 07. 2007, which is quoted hereunder :- “(8) Learned counsel for the plaintiffs/appellants submitted before this Court that lower appellate court has set aside the decree passed by the trial court only on the ground that the land is not identifiable and the plaintiffs failed to get located by getting surveyed the land in question. 07. 2007, which is quoted hereunder :- “(8) Learned counsel for the plaintiffs/appellants submitted before this Court that lower appellate court has set aside the decree passed by the trial court only on the ground that the land is not identifiable and the plaintiffs failed to get located by getting surveyed the land in question. But perusal of the plaint map and the description of the disputed land, shown at the foot of the plaint, shows that the land in respect of which relief is claimed by the plaintiffs, cannot be said to be not identifiable, as it is adjoining to the Jwalapur road and boundaries are shown of the disputed land in suit apart frm its Khasra number and other particulars. As such, the reason mentioned by the lower appellate Court for setting aside the decree, passed by the trial court, on the ground that the same is not identifiable is against the evidence on record. (9) As far as question of location/survey of disputed land of Plot No. 2772 is concerned, in the opinion of this Court, it arises only when one party pleads that the disputed land lies in one plot while the other disputes its existence on said Plot and claims to be part of some other Plot. It is not the case here. From the contents of the written statement, as mentioned above, it is evidently clear that the defendant has nowhere pleaded that disputed land is not part of Plot No. 2772. What is alleged by the defendant is that there are other co-owners of Plot No. 2772 and as such the plaintiffs cannot seek the relief claimed by them. But that plea is available to the co-owners, if relief for injunction or exclusive possession is sought againt them. The defendant though has claimed in his written statement that he is also owner of a part of land of 2772, but the lower appellate court itself in its impugned judgment has given a finding that defendant could not prove his co-ownership over Plot No.2772. In these circumstances, this Court is of the view that the lower appellate court erred in law in setting aside the decree on the ground that the disputed plot was not located or surveyed by the plaintiffs." 9. In these circumstances, this Court is of the view that the lower appellate court erred in law in setting aside the decree on the ground that the disputed plot was not located or surveyed by the plaintiffs." 9. The Appellate Court had rather reaffirmed the findings about the identifiability of the property, in question, coupled with the fact that with the rejection of the Review Application, the said fact stands affirmed and, thereafter, it was no more open to be re scrutinized by examination of the Naib Tehsildar, which was sought for by the Application dated 10th July, 2009, as preferred by respondent No. 1; the judgement debtor. What is important to be remarked herein is that in para 6 and 7 of the Review Application, the respondent No.1, has herself pleaded that there is no construction existing as such over the land, in question, and that they have further undertaken that if any construction is found over the disputed property, they will demolish it on their own and at their own costs. The decree holder seeking execution of the judgement and decree dated 15.12.1980, had filed an Execution Case No. 10 of 2010 and it was that during the pendency of the Execution Application, the judgment debtor, i.e. respondent No.1 had filed an objection by invoking the provisions contained under Section 47 of the Code of Civil Procedure. The said objection, as preferred by the respondent under section 47 of the CPC, was rejected by an order dated 28th January, 2013. As a consequence of rejection of objection on 28th January, 2013, the Executing Court proceeded to pass an order on 30th January, 2013, directing for the requisition of the possession in pursuance to the decree dated 15.12.1980. 10. Being aggrieved against the orders passed by the Executing Court on 28th January, 2013, rejecting the objection under Section 47 of the Code Of Civil Procedure, as well as the order that of 30th January, 2013, the judgment debtor, Sardar Dalip Singh, the father in law of respondent No.1, had preferred a Civil Revision, being Civil Revision No. 11 of 2013 Sardar Daleep Singh v/s Ram Kumar Gupta and others. The said Civil Revision too was dismissed by the Revisional Court by an order dated 25th March, 2013. The said Civil Revision too was dismissed by the Revisional Court by an order dated 25th March, 2013. As far as the orders dated 28th January, 2013, 30th January, 2013 and the Revisional Court's judgment dated 25th March, 2013, passed in Execution proceedings of Execution Case No 10 of 2010, have attained finality, since was not challenged before any other superior court. As a result of the dismissal of the Revision on 25th March, 2013, the Executing Court on 19th May, 2019, had issued a requisition for possession on the basis of the NaibTehsildar's report dated 7th April, 2015, which was called for by the Executing Court for the purposes of executing the decree dated 15.12.1980, though, the identifiability of the land, in dispute, was already affirmed by the Second Appellate Court's judgment dated 17.07.2017. 11. In the meantime, an objection was preferred by M/s Mahesh Electronics, who claimed themselves to be the transferee pendente lite from the judgement debtor and they filed an application under Order 21 Rule 99 to be read with Rule 101 of the CPC claiming to be in possession of the disputed land. The basis of the claim of M/s Mahesh Electronics was on the ground that on the basis of the measurement made by the Tahsil officials on 26th May, 2015, they claimed to have purchased a different segment of land by virtue of the sale deeds dated 24th July, 2001 and 1st September, 2001, hence had filed an application under order 21 Rule 99 of the Code Of Civil Procedure, which was registered as Misc Case No 16 of 2015. 12. However, the said application as preferred by M/s Mahesh Electronics under Order 22 Rule 99, to be read with Rule 101 of CPC, which was numbered as Miscellaneous Case No. 16 of 2015, M/s Mahesh Electronics Vs. Ram Kumar. The said application of Mahesh Electronics was dismissed by the Executing Court vide it's judgement dated 30th January, 2018, which was based on the issue of identifiability of the disputed land of the decree dated 15/12/1980. 13. Being aggrieved against the judgment of rejection of the application under Order 21 Rule 99 to be read with Rule 101 of the CPC, M/s Mahesh Electronics had preferred a Misc Civil Appeal, being Misc Civil Appeal No. 28 of 2018, challenging the order dated 30th January, 2018. 13. Being aggrieved against the judgment of rejection of the application under Order 21 Rule 99 to be read with Rule 101 of the CPC, M/s Mahesh Electronics had preferred a Misc Civil Appeal, being Misc Civil Appeal No. 28 of 2018, challenging the order dated 30th January, 2018. The said Misc Civil Appeal No. 28 of 2018, as preferred by M/s Mahesh Electronics too was dismissed by the Appellate Court by the judgement dated 30th May, 2018. 14. M/s Mahesh Electronics, challenging the two orders of rejecting their application under Order 21 Rule 99, to be read with Rule 101 of CPC, had preferred a Writ Petition, being a Writ Petition No. 2340 of 2018 M/s Mahesh Electronics V/S Ram Kumas since dead LR's and others. The said Writ Petition was heard on merits by this Court and the same was dismissed by the judgement dated 19th June, 2019. In the said judgment, it was held that the decree holder was entitled for the possession of the property as per the Naib Tehsildar's report dated 7th April, 2015, which was submitted in the Execution proceedings, seeking execution of the decree dated 15.12.1980 the following findings was recorded in the judgement dated 19/6/2019 as rendered in Writ Petition No 2340 of 2018, which as far as known to the petitioner had attained finality as it has not been challenged further before any superior court. Para 13, 18 and 19 of the said judgment is quoted hereunder :- “13. The objection thus preferred by the judgment debtor was considered by the executing court and the same was dismissed on 28.01.2013, and as against the dismissal of the objection under Section 47 of Code of Civil Procedure, a revision was preferred by the judgment debtor being Revision No. 11 of 2013 ‘Sardar Dalip Singh vs. Ramkumar Gupta', which too has met with the same destiny and was dismissed on 25.03.2013, and consequent thereto, as per the Amins report dated 07.04.2015 and also report of Tehsildar dated 07.04.2015 the decree holder respondent was entitled to be placed in possession over the property, which was the subject matter of the suit, of which the decree has been rendered in his favour. It is at this stage that the present petitioners, who claim their rights, based on the sale deed of 2001 for the first time as woken up from this slumber only after last 15 years of their alleged purchase by filing an objection under Order 21 Rule 99, the propriety of which has already been dealt with in the above part of the judgment. 18. Before this Court while challenging the order pertaining to the provisions contained under Order 21 Rule 99 the petitioners have sought to attempt upon to contend that under the garb of the decree finalized in favour of the decree holder upto the Second Appellate Court's judgment dated 17.07.2007, they cannot be permitted to barge upon the property even, which they contend to constitute to be the part of the sale deed, which admittedly has been executed in their favour in 2001 by the judgment debtor of Suit No. 12 of 1972 and, hence, at an appellate stage while questioning the order passed under Order 21 Rule 99 the petitioner cannot be permitted to take liberty to carve out altogether a fresh case, which otherwise though was available to him at the time of filing of an application under Order 21 Rule 99, but was never pleaded nor established for last 15 years from the date of alleged purchase before the court concerned, and atleast the petitioner cannot be permitted to take the stand that under the garb of the decree the decree holders are trying to encroach upon the part of the property, which otherwise did not constitute to be the part of the decree, cannot be accepted because such a plea if at all was available to the judgment debtor when he had filed his objection under Section 47 and which was taken into consideration when the objection was rejected and the decree was affirmed by the executing court. 19. 19. The dispute pertaining to the identifiability of the property at the behest of the petitioner yet again cannot be agitated at the stage of pressing of the application under Order 21 Rule 99 or in an Appeal arising after its rejection, more particularly, when it was nowhere the case in the pleading raised by the petitioner or his predecessor seller case from whom he has claimed to have derived his rights by the sale deeds of 2001 and that too by raising a plea after 15 years of accrual of purported right to him on the basis of the sale deed referred therein executed by the judgment debtor." 15. It was, thereafter, that the respondent No.1, herein, had filed an Application under Order 21 Rule 97 to be read with Rule 100 of the CPC on 2/7/2018, contending thereof that they had acquired the knowledge of the Execution Case No. 10 of 2010, later on and thus they filed the aforesaid Application on 2nd July, 2018, which was numbered as Miscellaneous Case No. 21 of 2018 Smt. Gurpreet Kaur v/s Shiv Kumar and others, wherein, during its pendency though the same was opposed by the petitioner by filing an objection to the said application filed under Order 21 Rule 97 to be read with Rule 100 of the CPC on 20th July, 2018. The Execution proceedings and the consequential Misc. Case No. 21 of 2018, preferred by respondent No. 1, remained pending consideration before the Executing Court. 16. It would not be out of place to mention here that yet another purchaser pendente lite, Mr. Devendra Khatri along with two other persons claimed to have purchased the property, in dispute, which was the subject matter of the decree dated 15.12.1980 of Suit No.12 of 1972. They too preferred a Misc. Case No. 26 of 2018, before Executing Court, the same was rejected by the Court of Civil Judge (Junior Division) Haridwar on 15/01/2019, and also the judgement and order dated 16th April, 2019, as passed by the District Judge, Haridwar in Civil Revision No. 189 of 2019, which was arising out of the proceedings drawn by Devendra Khatri and others, which was registered as Misc. Case No. 26 of 2018, which was rejected on 15/01/2019. Case No. 26 of 2018, which was rejected on 15/01/2019. The Miscellaneous case, thus preferred, by Devendra Khatri and others was concurrently rejected and, consequently, a Writ Petition, being Writ Petition No. 2365 of 2019, Devendra Khatri and others Vs. Shiv Kumar and others, was preferred before the Coordinate Bench of this Court, challenging the aforesaid two orders i.e. 15/01/19 of Executing Court and 16/04/19, dismissing the civil revision. The learned Coordinate Bench of this Court, after considering the impact of rejection of the Application under Section 47, in the Execution Proceedings on 28th January, 2013, the rejection of Miscellaneous Case Number 16 of 2015, by an order dated 30th January, 2018, and also considering the fact that the Second Appellate Court in its judgement dated 17/07/2007, has specifically recorded a finding to the effect that the property, in dispute, which was the subject matter of the decree dated 15/12/1980; was specifically identifiable had proceeded to dismiss the Writ Petition and, as a consequence thereto, the application preferred by the petitioner therein, i.e. Devendra Khatri and others under Order 26 Rule 9 of the CPC for appointment of the Survey Commissioner, which was numbered as paper No. 33-C2 and Paper No. 61-C2, which had decided the objection accordingly. On a challenge given to the two orders of rejecting the application under Order 26 Rule 9 of CPC, the Writ Petition too was dismissed by the coordinate bench of this court on 26th August, 2019. From the aforesaid two proceedings, i.e. the proceedings drawn by way of Writ Petition No. 2340 of 2018 and Writ Petition No. 2365 of 2019, which has been preferred by the transferee pendente lite, their effort has been always to avert to and to obstruct the execution of the decree dated 15.12.1980 on the pretext that the property in dispute was not identifiable. The said contention has been consistently foiled by the orders passed by the Executing Court; as well as the Revisional Court, upholding thereof that the property, in question, as per the finding recorded by the Second Appellate Court in its judgement dated 17.07.2007, which has attained finality, a specific finding has been recorded therein that the property is identifiable and, as a consequence thereto, the same had attained finality. A reference may be had to Para 8 and 9 of the Second Appellate Court's judgement dated 17/07/2007, which are already quoted in paragraph 8 of this judgment. 17. The proceedings, now at hand in the instant Writ Petition; are, where the challenge has been given by the petitioner / decree holder to the impugned order dated 23rd July, 2019 as that of rendered in Misc Case No 21 of 2018, of allowing the application, Paper No. 53-C2, which was filed by the respondent No. 1 on 10/07/2019, by invoking the provisions contained under section 151 of CPC, for adducing the oral evidence by producing the Naib Tehsildar, who had submitted the report dated 7th, April 2015, i.e. paper number 57-C2 before the Executing Court, it was nothing but a clever device well intended and adopted by judgment debtor to somehow linger on the execution proceedings and to athwart execution of the decree rendered way back on 15.12.1980. The argument of the learned counsel for the petitioners is that the impugned order dated 23rd July, 2019 allowing the application Paper No 53 C2, impugned in the Writ Petition, has been inappropriately passed by the Court of Civil Judge (Junior Division) Haridwar, arguing thereof that as far as the propriety of the report submitted by Naib Tehsildar on 7th April, 2015, in Execution Case No. 10 of 2010, that has attained finality in view of two judgements rendered by the High Court, i.e. on 19th June, 2019 in Writ Petition No. 2340 of 2018 and that of the judgment dated 26th August, 2019 which was, rendered in Writ Petition No. 2365 of 2019. Even otherwise also, if the propriety of the application preferred by respondent No.1. i.e. Paper No. 53C2, which was opposed by the petitioners by filing an objection on 11th July, 2019 is considered Courts have consistently, recorded a specific finding that as far as identifiability of the property, in question, is concerned, the same since has been considered by the Second Appellate Court too and later on, it was affirmed by the report submitted by the Naib Tehsildar on 7th April, 2015, there was no necessity as such to summon Naib Tehsildar to be examined in support of his report dated 7th April, 2015, which too has to be read in consonance to the two judgements rendered in the two writ petitions referred above. 18. 18. Even this Court too is of the view that as far as the application, Paper No. 53-C2, which has been preferred by respondent No.1, had no plausible and sustainable ground to stand, apart from the fact the finding on identifiability of the land which has already attained finality as recorded by the Second Appellate Court, in its judgement dated 17.07.2007 and secondly also on the ground that the provisions contained under Section 151 of the CPC could not be extracted to be made applicable while preferring an application Paper No. 53C2, for the purposes of summoning the Naib Tehsildar to be examined in support of his report dated 07/04/2015. The logic behind it is that, the CPC or the Evidence Act in itself is a self-contained procedural provision, which already deals with such type of contingencies, where the revenue official, who has submitted the report, could be summoned for the purposes of examining its content in support of the report. When the law is covered by a field provided under the statute, in that eventuality, the provisions contained under Section 151 of CPC, could not be extracted to be made applicable for the purposes of summoning the Naib Tehsildar to be examined in support of his report dated 7th April, 2015. The Hon'ble Apex Court in the case of State of U.P. & Others Vs. Roshan Singh (D) by L.Rs. & Others as reported in AIR 2008 SC 1190 , in its para 7 has held as under :- “7. The principles which regulate the exercise of inherent powers by a court have been highlighted in many cases. In matters with which the CPC does not deal with, the Court will exercise its inherent power to do justice between the parties which is warranted under the circumstances and which the necessities of the case require. If there are specific provisions of the CPC dealing with the particular topic and they expressly or necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter, the inherent powers of the Court cannot be invoked in order to cut across the powers conferred by the CPC. The inherent powers of the Court are not to be used for the benefit of a litigant who has remedy under the CPC. Similar is the position vis-a-vis other statutes. The inherent powers of the Court are not to be used for the benefit of a litigant who has remedy under the CPC. Similar is the position vis-a-vis other statutes. The object of Section 151 CPC is to supplement and not to replace the remedies provided for in the CPC. Section 151 CPC will not be available when there is alternative remedy and same is accepted to be a well-settled ratio of law. The operative field of power being thus restricted, the same cannot be risen to inherent power. The inherent powers of the Court are in addition to the powers specifically conferred to it. If there are express provisions covering a particular topic, such power cannot be exercised in that regard. The section confers on the Court power of making such orders as may be necessary for the ends of justice of the Court. Section 151 CPC cannot be invoked when there is express provision even under which the relief can be claimed by the aggrieved party. The power can only be invoked to supplement the provisions of the Code and not to override or evade other express provisions. The position is not different so far as the other statutes are concerned. Undisputedly, an aggrieved person is not remediless less under the Act." Similarly, in the case of M/s British Motor Car Co. Vs. Madal Lal Saggi (Dead) and another, as reported in AIR 2005 SC 240 , in its para 12 has held as under :- “12. In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 , it has been held that inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 CPC, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. In the present case, as stated above, Section 10 CPC has no application and consequently, it was not open to the High Court to bye-pass Section 10 CPC by invoking Section 151 CPC." 19. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. In the present case, as stated above, Section 10 CPC has no application and consequently, it was not open to the High Court to bye-pass Section 10 CPC by invoking Section 151 CPC." 19. Even otherwise also, this Court is of the view that if the Application Paper No. 53C2 as preferred by the respondent No. 1 is taken into consideration, there was no necessity as such to be filed on 10th July, 2019, at a much belated stage of the Execution proceedings of 2010 was malicious as it intended just to delay the executing proceedings despite the fact that the said issue had attained finality with the dismissal of the two Writ Petitions, as well as the finding which has been recorded by the Second Appellate Court and, thus it could be safely said that the application dated 10th July, 2019, filed by respondent No.1, was nothing but a maliciously oriented application to delay the proceedings of the execution. 20. I am also of the view that after hearing the counsel for the parties at length, that the application Paper No. 53C2 dated 10th July, 2019, itself cannot be sustained for the reason being that there was no procedural necessity as such because in view of the findings recorded by the earlier decisions taken in the execution proceedings while the court was dealing with the application under Order 21 Rule 99 to be read with Rule 101 preferred by M/s Mahesh Electronics and that while dealing with the application under Order 21 Rule 97 to be read with Rule 100 as preferred by Devendra Khatri and others it was at that stage also that, the propriety of the report dated 7th April, 2015, and its necessity to examine the Naib Tehsildar has already been affirmed by the Executing Court, which later stood affirmed in the judgements rendered in the writ petitions, and hence, the application as preferred on 10th July, 2019 i.e., paper number 53 C2, was nothing but a maliciously oriented application to delay the proceedings though there was no legal requirement as such for the same on account of the finality of the findings recorded by the Coordinate Bench of this Court in the Second Appellate Court's judgment as well as in the writ petitions. 21. 21. If the controversy in the writ petition is looked into from another prospective of time and the stages of execution proceeding in which respondent, started its participation by filing an application under order 21 Rule 97 on 02/07/2018, it was based on the alleged purchase made by her as back as on 31/7/85.What is relevant is that the report of Naib Tahsildar dated 7/4/15 i.e paper number 57C2,was existing on records of the execution case even before his filing of application under order 21 Rule 97 on 2/7/18.Not even that she sat over it and filed the application paper No.53C2 invoking provisions contained under section 151 of code of Civil Procedure only on 10/7/19. By that earlier proceedings before this court already stood decided affirming the aspect of identification of the disputed land. Hence the application was malicious to buy time and resist execution of decree dated 15/12/80 rendered in Original Suit No. 12 of 1972. 22. In view of the aforesaid, the application as preferred by respondent No. 1, had been wrongfully allowed by the court of Civil Judge (Junior Division) by the impugned order dated 23rd July, 2019, without recording any finding with regard to the effect and impact of the Second Appellate Court's judgement dated 17/07/2007 and also with regard to the effect of the judgement dated 19th June, 2019, as well as the judgement dated 26th August, 2019, rendered by the Coordinate Benches of this Court dealing with the issue of identifiability of the property in the aforesaid two writ petitions. The impugned judgment of the Trial Court cannot be sustained, as it would be an abuse of process to delay the execution proceedings of a decree rendered in 1980 in a Suit of 1972, particularly, when there was no necessity as such apparent on record to summon the Naib Tehsildar to be examined orally in support of his report dated 7th April, 2015, which otherwise has been consistently upheld by this Court in various judgments rendered dealing with the controversy. 23. 23. Hence, in that view of the matter and for the reason aforesaid, this Court after giving a considerable thought to the argument extended by the learned counsel for the parties to the Writ Petition as well as after going through the material which was brought on record in the present writ petition is of the view that the impugned order dated 23rd July, 2019, cannot be sustained. Hence, the same is quashed and, as a consequence thereto, the application, Paper No. 53C2 dated 10th July, 2019, as preferred by respondent No.1, is hereby rejected. 24. The Writ Petition is allowed. The Executing Court is expected to decide the execution case itself as expeditiously as possible, but not later than 6 months from the date of the service of the certified copy of this judgement. However, there will be no order as to costs.