Research › Search › Judgment

Himachal Pradesh High Court · body

2023 DIGILAW 195 (HP)

Roshan v. Nayyar Mineral Export (P) Ltd.

2023-03-31

VIVEK SINGH THAKUR

body2023
JUDGMENT : Vivek Singh Thakur, J Petitioner has approached this Court assailing the orders dated 7.8.2019 and 23.10.2019 passed by Senior Civil Judge, Nurpur, District Kangra in Execution Petition No. 33 of 2016, titled M/s Nayyar Mineral Export (P) Ltd. vs. Kishore and others. 2. Respondent No.1 is Decree Holder and petitioner and proforma-respondents are Judgment Debtors as they/their predecessors-in-interest have suffered judgment and decree dated 1.3.2008 passed by the Civil Judge (Senior Division), Nurpur in Civil Suit No. 165 of 2003 which has been affirmed by Additional District Judge-I Kangra vide judgment and decree dated 2.8.2010, passed in Civil Appeal No. 28-N/2008 titled Kishore and others vs. M/s Nayyar Minerals Export (P) Ltd. 3. Time barred Regular Second Appeal, preferred by Judgment Debtors, was dismissed by this High Court, vide order dated 15.6.2018, with dismissal of application filed for condonation of delay CMP(M) No. 49 of 2017 titled Kishore and others vs. M/s Nayyar Minerals Export (P) Ltd. 4. After affirmation of judgment and decree by Additional District Judge vide judgment dated 2.8.2010, Decree Holder preferred Execution Petition No. 33 of 2016 on 17.8.2016 wherein present petitioner was Judgment Debtor No.1 and he along with other Judgment Debtors except Judgment Debtor No.7 Parsino Devi, was served for 23.11.2016, whereas at that time, Judgment Debtor No. 7 Parsino was reported to have expired. Thereafter, on 18.1.2017, it was informed that Judgment Debtor Pushpa Devi had also expired. On that day, Execution Petition was adjourned for filing reply on behalf of Judgment Debtors except Judgment Debtor Pushpa Devi and Judgment Debtor Parsino, who were reported to have expired. On that day, Decree Holder was also directed to file appropriate application on account of their death. 5. Execution Petition remained pending and was listed in Court on 18.3.2017, 17.5.2017, 7.6.2017, 2.8.2017, 13.9.2017, 8.11.2017, 20.12.2017, 7.2.2018, 21.3.2018, 30.5.2018, 18.7.2018, 29.8.2018, 26.9.2018, 28.11.2018, 16.1.2019, 5.2.2019, 4.4.2019, 30.5.2019, 15.6.2019 and 17.7.2019. 6. Application under Order 22 Rule 4 CPC for substitution of Pushpa Devi and application under Order 1 Rule 10 CPC for deletion of name of Parsino Devi were filed on 17.5.2017. Legal representatives of Judgment Debtor Pushpa Devi namely Mohan Lal (husband) and Pawan Kumar (son) were served but they did not appear and proceeded ex-parte on 8.11.2017. 6. Application under Order 22 Rule 4 CPC for substitution of Pushpa Devi and application under Order 1 Rule 10 CPC for deletion of name of Parsino Devi were filed on 17.5.2017. Legal representatives of Judgment Debtor Pushpa Devi namely Mohan Lal (husband) and Pawan Kumar (son) were served but they did not appear and proceeded ex-parte on 8.11.2017. However, Judgment Debtor Anu Bala and Pinki Devi, daughters of deceased Pushpa Devi, were not served despite the fact that they were daughters of Mohan Lal and sisters of Pawan Kumar, who were duly served. Ultimately, Decree Holder filed an application under Order 5 Rule 20 CPC and Judgment Debtors Anu Bala and Pinki Devi were served by way of publication for 4.4.2019 but for absence on the date fixed for their presence in Court, they were proceeded exparte. 7. On 30.5.2019 to avoid the unnecessary delay in execution of impugned judgment and decree, matter was referred for conciliation to Lok Adalat to be held on 15.6.2019 but on that day, for absence of Judgment Debtors, conciliation failed and case was again listed in Court. 8. In aforesaid background, case was listed on 7.8.2019 before Senior Civil Judge on which date impugned order was passed by Senior Civil Judge allowing the applications under Order 22 Rule 4 CPC and Order 1 Rule 10 CPC and warrant of possession was also issued. 9. Vide impugned order dated 7.8.2019, Judgment Debtor Parsino was permitted to be deleted as her legal heirs were already on record as Judgment Debtors No. 1 to 6. Judgment Debtor No.3 was ordered to be substituted through her husband Mohan Lal, son Pawan Kumar and daughters Anu Bala and Pinki Devi being legal representatives of deceased Pushpa Devi. On that day, Senior Civil Judge also observed that more than three years have already passed after filing of Execution Petition but till that time appearing Judgment Debtors did not prefer objections and, therefore, he ordered to execute the decree by issuing warrant of possession for 25.9.2019. 10. No ground has been made out for assailing deletion of Judgment Debtor Parsino Devi and substitution of legal representatives of Judgment Debtor Pushpa Devi on account of death of three Judgment Debtors. 10. No ground has been made out for assailing deletion of Judgment Debtor Parsino Devi and substitution of legal representatives of Judgment Debtor Pushpa Devi on account of death of three Judgment Debtors. However, learned counsel for petitioner has contended that by not granting time for filing objections and issuing warrant of possession, Senior Civil Judge has violated principles of natural justice and therefore, he submits that this order warrants interference as according to him matter was being adjourned for service of parties especially service of legal heirs of deceased sister of petitioner and matter remained pending in Lok Adalat and therefore, petitioner could not maintain followup with his counsel as he was not aware about filing of objections, moreover his counsel also could not communicate properly and for lack of knowledge or proper intimation, petitioner could not file response/objections and therefore, he is entitled for opportunity for filing the objections. 11. Petitioner/Judgment Debtor No.1 was served for 23.11.2016 and on 18.1.2017 time was granted to file reply on behalf of appearing Judgment Debtors. Petitioner was one of them but he did not prefer to file reply/objections to Execution Petition till 2019. He along with others was being duly represented by Advocate. Other Judgment Debtors have not preferred to contest the order dated 7.8.2019 and it appears that they have accepted the order and it is only the petitioner who has assailed order dated 7.8.2019. 12. Petitioner/Judgment Debtor, alongwith others, has suffered a decree on 1.3.2008 for possession by demolishing the structure raised. Appeal preferred by him and others was dismissed on 2.8.2010. Thereafter, Judgment Debtors did not assail the judgment and decree, and even after service in Execution Petition in the year 2016, they remained silent till 2017 and thereafter preferred CMP(M) No. 49 of 2017 after seven years of affirmation of judgment and decree passed by Additional District Judge. The said appeal was dismissed along with application on 15.6.2018. Even thereafter, Judgment Debtor-petitioner did not opt to file any objection/reply to Execution Petition. Judgment Debtors were being represented by Advocate and Judgment Debtor – Petitioner was contesting the suit since its inception in the year 2003. Petitioner had approached the High Court, consulted and engaged the counsel in High Court. He was aware about impact of decree passed against him and he had been taking all steps to frustrate the decree passed against him. Petitioner had approached the High Court, consulted and engaged the counsel in High Court. He was aware about impact of decree passed against him and he had been taking all steps to frustrate the decree passed against him. He was well conversant with procedure of the Court. Therefore, it does not lie in the mouth of petitioner that he was not having proper communication with his counsel and, therefore, he, for lack of knowledge and information, could not file objection/reply to Execution Petition for three years. In aforesaid facts and circumstances, I do not find any error, illegality or perversity in impugned order dated 7.8.2019. 13. For execution of decree passed on 1.3.2008, warrant of possession vide order dated 7.8.2019 was issued after 11 years, returnable on 25.9.2019. On 25.9.2019 warrant of possession was not received back and therefore, reminder was sent to concerned quarter for reporting on 23.10.2019. 14. On 23.10.2019, warrant of possession was received back unexecuted with report that same could not be executed for want of police assistance and presence of Bailiff for the purpose of handing over the domestic article on Supurdari. Therefore, in view of report, fresh warrant of possession was ordered to be issued along with direction to concerned SHO for providing police assistance, and Bailiff of Court was also directed to assist the Executing Agency in execution of warrant of possession and matter was listed for report on 11.12.2019. Thereafter, present petition was preferred and vide order dated 20.11.2019 execution of orders dated 7.8.2019 and 23.10.2019 was stayed. Petitioner has suffered a decree whereby Decree Holder has been held entitled for vacant possession of land by way of demolition of structure. The decree was passed on 1st March, 2008 and Execution Petition was filed in 2016. Petitioner, alongwith others, was served for 23.11.2016. On 18.1.2017, specific order was passed directing Judgment Debtors to file reply and warrant of possession was issued by Senior Civil Judge on 7.8.2019, after about three years of filing of Execution Petition. During this period, Judgment Debtor did not opt to file any objection/reply to petition. Otherwise also, even in present petition, there is not even a whisper about objection proposed to be raised by Judgment Debtor against execution of decree. During this period, Judgment Debtor did not opt to file any objection/reply to petition. Otherwise also, even in present petition, there is not even a whisper about objection proposed to be raised by Judgment Debtor against execution of decree. Only arguments raised on behalf of petitioner is that issuance of warrant of possession without providing opportunity of being heard to Judgment Debtor is illegal and is not sustainable. This plea is factually incorrect as per observations made herein-above, on the basis of material placed on record and when warrant of possession was received back without execution with report that it could not be executed without help or assistance of police and Bailiff. There is no illegality, irregularity or perversity in order passed by Executing Court to issue fresh warrant of possession with direction to police and Bailiff to assist and facilitate execution of warrant of possession. In view of above, I find no merit in this petition and petition is accordingly dismissed. Needless to say that interim order passed in this petition also stands vacated.