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2023 DIGILAW 100 (JK)

Manohar Lal v. Padam Dev Singh

2023-03-10

SANJAY DHAR

body2023
JUDGMENT : 1. By this common order, three petitions, one being revision petition filed by Manohar Lal impugning order dated 01.12.2018 passed by learned Munsiff, Akhnoor in the execution petition, being No. 03/Execution, the other being writ petition filed by Varinder Dev Singh and others impugning order dated 01.12.2018 passed by Munisiff Akhnoor in execution petition being No. 5/Execution and the third one filed by the petitioner, Shiv Kumar impugning order dated 01.12.2018 passed in execution petition bearing No. 03/Execution, are proposed to be disposed of. 2. It appears that the judgment and decree dated 01.09.1992 was passed in favour of predecessor-in-interest of Padam Dev Singh, Surya Dev Singh and Varinder Dev Singh in respect of land measuring 40 kanals and 16 marlas, situated at village Gandarwan, Tehsil Akhnoor against the judgment-debtors, the predecessor-in-interest of Manohar Lal and Shiv Kumar. Another judgment and decree dated 27.02.1991 was passed in favour of predecessor-in-interest of Manohar Lal and Shiv Kumar in respect of land measuring 6 kanals 1 marlas in Khasra No. 4262/592, 31 kanals 08 marlas in Khasra 4261/592, 4 kanal 6 marlas in Khasra No. 593 and 6 kanals and 2 marlas in Khara No. 599 situated at village Gandarwan, Tehsil Akhnoor against judgment-debtors, the predecessor-in-interest of Padam Dev Singh, Surya Dev Singh and Varinder Dev Singh. 3. It appears that somewhere in the year 2017/2018, the legal heirs of decree holders approached the executing court i.e. Munsiff, Akhnoor by way of execution petitions against the legal heirs of judgment-debtors, alleging therein that the judgment-debtors are resisting the execution of the decree of permanent prohibitory injunction granted by the civil court in their favour. The learned executing court after hearing the parties in both the execution petitions, passed identical orders on 01.12.2018, thereby allowing the execution petitions. These orders are under challenge in these three petitions. 4. Vide the impugned orders, the learned executing court has directed the Nazir to execute the decrees in accordance with the judgments and it has been provided that if it is deemed proper by the Nazir, he can take assistance of concerned revenue officials, who shall go on spot to ascertain whether there is any encroachment and the Nazir has been authorized to take assistance of the Police in order to remove the encroachment over the land in question. It is pertinent to mention here that identical directions have been passed in both the execution petitions. 5. Learned counsel appearing for the judgment-debtors in both the cases have challenged the impugned orders primarily on the ground that legal heirs of the deceased, decree holders cannot maintain execution petitions against legal heirs of judgment-debtors. It has been further submitted that it is not open to the judgment-debtors to seek execution of the decree after a lapse of more than 25 years. The judgment-debtors have further contended that the learned executing court while allowing the execution petition has delegated its powers to the Nazir and without ascertaining as to whether there is any encroachment on spot, directions have been passed for its removal. 6. Mr. Rakesh Chargotra, learned counsel appearing for the decree-holders/respondents in CR No. 49/2019 and OWP No. 266/2019 has submitted that petition for execution filed by the legal heirs of the decree holders is maintainable in view of Section 50 of Code of Civil Procedure. He has further submitted that for execution of decree of permanent prohibitory injunction, the cause of action is continuous and no limitation for filing execution petition is provided therefor. 7. Heard learned counsel for the parties and perused the record. 8. So far as the question of maintainability of execution petition by the legal heirs of decree holders against the legal heirs of the judgment-debtors is concerned, the same is no longer res integra. The Supreme Court in the case of Prabhakara Adiga vs. Gowri and ors, (Civil Appeal Nos. 3007-3008 of 2017 decided on 20.02.2017), has held that as per the provisions of Section 50 of CPC, if the judgment-debtor dies before the decree has been satisfied, it can be executed against the legal representatives. The Supreme Court has further clarified that Section 50 is not confined to a particular kind of decree and it would cover the cases relating to execution of decree for injunction as well. The learned executing court while relying upon ratio laid down in the aforesaid judgment, has rightly declined the contention of the judgment-debtors. 9. So far as the limitation in filing the execution petition is concerned, no limitation has been provided for execution of decree for permanent prohibitory injunction. The learned executing court while relying upon ratio laid down in the aforesaid judgment, has rightly declined the contention of the judgment-debtors. 9. So far as the limitation in filing the execution petition is concerned, no limitation has been provided for execution of decree for permanent prohibitory injunction. Section 48 of the J&K CPC, which has been pressed into service by the learned counsel for the judgment-debtors to contend that the limitation provided for filing execution petition is 12 years from the date of decree, clearly provides that it does not apply to the injunction decrees. Therefore, the contention of the learned counsel for the judgment-debtors in this regard is without any merit. 10. However, when we have a look at the operative portion of the impugned orders passed by the executing court in both the executing petitions, it is revealed that the learned executing court has left everything to be decided by the Nazir of the Court. The executing court has passed the impugned directions on ifs and buts without recording any finding as to whether the judgment-debtors have encroached upon the suit land after passing of the decree. Without undertaking such an exercise, it was not open to the learned executing Court to pass a direction to the Nazir to get the encroachment removed with the assistance of revenue officials and police. The impugned order to this extent is liable to be set aside. 11. Accordingly, the impugned order to the extent it directs the Nazir to take assistance of the revenue officials and police to remove the encroachment, is set aside and the case is remitted back to the Executing Court for a fresh decision in accordance with law and the guidelines laid down for execution of decree in Order 21 Rule 32 of the CPC. 12. All the aforesaid petitions are allowed accordingly. The parties are directed to appear before the executing court on 31.03.2023.