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2025 DIGILAW 382 (HP)

Sunil v. Anu

2025-03-17

SATYEN VAIDYA

body2025
JUDGMENT : Satyen Vaidya, J. By way of instant petition challenge has been laid to orders dated 17.04.2019 and 29.03.2023 passed by learned Senior Civil Judge, Una in Execution Petition No. 475 of 2013. 2. Civil Suit No.78/1987 was filed by Shri Mangat Rai, predecessor-in-interest of respondent No.1 against S/Shri Jagan Nath and Dina Nath, who were predecessors-in-interest of petitioners and respondents No.2 to 5, respectively. The suit was filed for possession of the suit land on the basis of title. The suit land was described by letters ABCD and LMQN being part of land comprised in Khasra Nos.868 and 820 in village Charatgarh, Tehsil and District Una. The suit was dismissed by learned trial Court. 3. An appeal under Section 96 of the Code of Civil Procedure was filed by Shri Mangat Rai against the judgment and decree of dismissal passed by learned trial Court. Learned District Judge, Una, vide judgment dated 26.11.2011, passed in Civil Appeal No.109 of 1994 partly allowed the appeal of Shri Mangat Rai and passed a decree of possession by way of removal of super structure as denoted by letters ABD&C in th report of Local Commissioner Ext. PX being part and parcel of land measuring 0-0-60 comprised in Khasra No.820. Judgment passed by learned District Judge Una has attained finality. 4. With the passage of time all the original parties have been succeeded by their successors as noticed above. 5. Respondent No.1 (for short, the Decree Holder) has filed execution petition for execution of aforesaid decree dated 26.11.2011 passed by learned District Judge, Una. The petitioners herein preferred objections to the execution petition of the decree alleging inter alia, that the decree was unexecutable as the same was not passed in favour of the decree holder. Further that the decree, as against judgment debtors No.1 to 4 i.e. the present petitioners and their mother Smt. Bimla Devi (now deceased), stood satisfied on receipt of a sum of Rs.30,000/- by Shri Mangat Rai on 25.05.2012 from the predecessor-in-interest of judgment debtors No.1 to 4 (petitioners herein). It was asserted that the decree holder had made a specific admission to that effect while making a statement dated 20 th July, 2018 before the Field Kanungo, who had visited the spot to execute warrant of possession issued in execution of the decree. 6. It was asserted that the decree holder had made a specific admission to that effect while making a statement dated 20 th July, 2018 before the Field Kanungo, who had visited the spot to execute warrant of possession issued in execution of the decree. 6. The decree holder denied any amount having been received by her father-in-law Shri Mangat Rai. The decree holder further averred that the judgment debtors No.1 to 4/objectors had agreed to execute sale deed of decree holder with respect to construction on the suit land along with adjoining land and house, but they refused to do so. The statement made by the decree holder before the Field Kanungo was in expectation of fructification of aforesaid deal between the parties. In nutshell, the decree holder asserted her right to execute the decree. 7. Learned executing Court vide impugned order dated 17.04.2019 held that the statement made by decree holder on 20.07.2018 before the Field Kanungo was not sufficient to uphold the objections raised by judgment debtors No.1 to 4. The stand taken by the decree holder in her reply to objection petition was considered to be clear intent on her part to execute decree against all the judgment debtors. Learned executing Court also made reference to an order dated 29.08.2018 passed by his predecessor-in-office whereby it was held that the decree could not be executed in part. 8. Taking into consideration the entire available material, learned executing Court dismissed the objections by holding that the decree was not rendered inexecutable by the statement of decree holder dated 20.07.2018. It was a composite decree against all the judgment debtors and for such reason also it could not be executed in part. As regards the objection as to unexecutability of decree in favour of the decree holder, learned executing Court held that the decree holder had purchased the suit land from her father-in-law late Shri Mangat Rai by way of sale deed dated 25.05.2015 and had thereafter been substituted as decree holder during the pendency of execution proceedings. The petitioners had also raised objection as to validity of the report of Local Commissioner, but the same was also rejected by learned execution Court on the ground that the findings recorded by learned District Judge had attained finality. 9. The petitioners had also raised objection as to validity of the report of Local Commissioner, but the same was also rejected by learned execution Court on the ground that the findings recorded by learned District Judge had attained finality. 9. The other order that has been assailed by way of instant petition has been passed by learned executing Court on 29.03.2023 on the objection raised by judgment debtor No.4 under Section 47 of the Code. Learned executing Court referred to the first order dated 17.04.2019 to hold that the said order had attained finality and was not challenged either by judgment debtors No.2 and 3 (petitioners No.2 and 3 herein) nor by judgment debtor No.4 (petitioner No.1 herein). Thus, learned executing Court held that the objection raised by judgment debtor No.4 (petitioner No.1 herein) had already been dismissed by the Court on 17.04.2019 and filing of similar objections after four years by judgment debtor No.4 (petitioner No.1 herein) clearly suggests that the judgment debtors were trying to delay the execution of decree dated 26.11.2011 passed by learned District Judge, Una. 10. I have heard learned counsel for the parties and have also gone through the record. 11. The decree holder, who holds the decree, has the option to execute the same or decide otherwise. There is no dispute that the decree passed by the learned District Judge, Una has attained finality. It is a composite decree against the petitioners herein and respondents No.2 to 5. There is no demarcation as to separate portion held by petitioners and respondents No.2 to 5 on the land, the possession of which is to be delivered to the decree holder under the decree. Still, the wish of the decree holder to execute the decree in part, if permissible in given facts, has to be given adherence. However, the decree holder by her conduct in the instant proceedings has not shown any such inclination. She has explained reasons for making admission before the Filed Kanungo. Furthermore, she has contested the objections of judgment debtors No.1 to 4 tooth and nail before learned executing Court and the same is her stance before this Court also. However, the decree holder by her conduct in the instant proceedings has not shown any such inclination. She has explained reasons for making admission before the Filed Kanungo. Furthermore, she has contested the objections of judgment debtors No.1 to 4 tooth and nail before learned executing Court and the same is her stance before this Court also. Even if it is assumed that the decree holder at one stage had decided to abandon the execution of the decree against judgment debtors No.1 to 4, she cannot be stopped from changing her stand in changed circumstances till the right to execute the decree survives in faovour of the decree holder. 12. It also cannot remain unnoticed that the petitioners herein have not pleaded any interest adverse to each other. Once the objections of petitioners No.2 and 3 had been dismissed by learned executing Court vide order dated 17.04.2019, it cannot be believed that petitioner No.1( judgment debtor No.1) was not aware about the same. Viewed from another angle, it also cannot be believed that while filing the same objections after four years, petitioner No.1( judgment debtor No.4) had not consulted his brothers i.e. petitioners No.2 and 3. Second attempt to file similar objections without challenging order dated 17.04.2019 cannot be said to be bonafide by any stretch of imagination. 13. There also is no explanation from the petitioners as to why order dated 17.04.2019 was not challenged till June 2013 when the instant petition was filed. The conduct of the petitioners is clearly not bonafide, 14. Even the earlier order dated 29.08.2018 on somewhat identical issue, passed by the executing Court has remained unchallenged till date. 15. In result, this Court is not persuaded to take different view from the one taken by learned Executing Court by way of impugned orders. The impugned orders cannot be said to be illegal, perverse or without jurisdiction. 16. Accordingly, the petition is dismissed with costs of Rs.10,000/- to be paid by the petitioners to the decree holder.