Himachal Pradesh High Court
Surjit Singh vs Harmohinder Singh & Others on 12 April, 2017
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision No. 107 of 2012 .
Judgment reserved on 29.3.2017
Decided on : 12.4.2017
Surjit Singh .....Petitioner.
Versus
Harmohinder Singh & others. ......Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1.Yes.
For the Petitioner: Mr. Neeraj Gupta, Advocate.
For the Respondents: Mr. Shyam Singh Chauhan vice counsel.
Sureshwar Thakur, J The instant petition stands directed against the impugned order, recorded by the learned Civil Judge (Senior Division) Una, District Una, H.P. upon the objections constituted therebefore by the JD, whereupon he resisted the execution of the conclusively recorded decree of mandatory injunction whereupon the projections raised by the JD upon 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 19/04/2017 00:09:26 :::HCHP 2khasra No. 4464/2903/1, projections whereof stands denoted by letters shown in red and yellow circles in the site plan stood .
hence ordered to be demolished, whereupon he hence dismissed the apposite objections reared therebefore. Initially, the judgment debtor resisted the execution, by the learned executing Court, of the apposite decree put to execution therebefore by his rearing objections therebefore, objections, whereof, however thereat did not hold therewithin any unfoldment qua the judgment debtor suo motu voluntarily begetting compliance with the decree of mandatory injunction aforesaid, comprised in his removing the unauthorisedly raised projection/construction upon khasra No. 4464/2903/1.
However, the aforesaid compliance made by the JD with the decree put to execution before the learned executing Court, stood subsequently espoused by him, espousal whereof stood embedded in an application constituted therebefore under the provisions of Order 6 Rule 17 CPC, whereon also the learned executing Court pronounced an order dismissing it. The order rendered by the learned Executing Court upon the application constituted therebefore by the JD under the provisions of Order 6 Rule 17 CPC, stood pronounced thereon, on 1.5.2012, ::: Downloaded on - 19/04/2017 00:09:26 :::HCHP 3 whereas the learned Executing Court proceeded to subsequently on 18.8.2012 dismiss the objections constituted .
therebefore by the judgment debtor.
2. The learned counsel appearing for the petitioner herein, has hereat constituted an onslaught qua the legality of the orders pronounced by the learned Executing Court upon the application constituted therebefore by the judgment debtor under the provisions of Order 6 Rule 17 CPC, however, he in prompt sequel to the orders standing pronounced thereupon, by the learned Executing Court, visibly omitted to make an apposite motion herebefore for hence seeking their reversal.
Obviously, he waited for the pronouncement of a verdict by the learned Executing Court, upon his earlier therewith instituted objections qua the executability of the execution petition, objections whereof did not hold therewithin any averment qua the judgment debtor suo moto meteing compliance with the mandate of the conclusively recorded concurrent decree(s) of mandatory injunction, pronounced upon him, by the civil courts concerned, whereupon the failure or omission of the judgment debtor, to promptly, on rendition of an apposite verdict upon his application constituted under the provisions of ::: Downloaded on - 19/04/2017 00:09:26 :::HCHP 4 Order 6 Rule 17 CPC before the learned Executing Court, hence may estop him to assail it herebefore nor he nowat stand .
vested with any leverage, to while assailing the orders recorded subsequent thereto upon his objections by the learned Executing Court, to also assail the verdict recorded, by it, upon his application constituted therebefore under the provisions of order 6 Rule 17 CPC. Though, an apposite facilitation or statutory leverage stands bestowed upon a party to the lis, aggrieved, by any pronouncement made by the learned trial Court or the learned first Appellate Court upon any motion constituted therebefore during the pendency of a civil suit before it or during the pendency of an appeal before the learned First Appellate Court, to dehors his not making a prompt challenge thereto herebefore, to within the grounds of appeal held in a Regular Second Appeal constituted herebefore against the verdicts recorded by the courts below to also assail the pronouncements respectively recorded by the learned trial Court and by the learned first Appellate Court upon application(s) respectively constituted therebefore during the pendency of the apposite civil suit or during the pendency of an appeal thereat, ensual whereof, of the aforesaid statutory ::: Downloaded on - 19/04/2017 00:09:26 :::HCHP 5 leverage(s) vis-à-vis the aggrieved litigant, significantly accrues from the mandate held in the provisions of Section 105 of the .
Code of Civil Procedure, provisions whereof stand extracted hereinafter.
"105. Other orders.- (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of the original or appellate jurisdiction, but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
(2) Notwithstanding anything contained in sub-
section (1), where any party aggrieved by an order of remand [***] from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."
3. The bestowing of the aforesaid statutory leverage upon an aggrieved from an adverse pronouncement recorded upon him qua application(s) instituted before the civil Court concerned or upon applications constituted before the appellate Court, hence visibly ensue qua him on his preferring a second appeal before this Court, whereas with the petitioner herein, ::: Downloaded on - 19/04/2017 00:09:26 :::HCHP 6 invoking the revisional jurisdiction of this Court, thereupon he may stand estopped to assail the decision recorded by the .
learned executing Court upon his application constituted therebefore under the provisions of Order 6 Rule 17 CPC.
However, the baulking of the aforesaid endeavour of the revisionist, would be unjust besides would be for the reason(s) ascribed hereinafter hence judicially inexpedient.
4. The doctrine of merger holds its sway besides clout inter se the orders recorded by the learned executing Court upon the apposite objections of the JD constituted therebefore, objections whereof stood instituted therebefore earlier qua his constituting therebefore an application under the provisions of Order 6 Rule 17 CPC, sway whereof remains intact, despite the learned executing Court making its apposite pronouncement upon the application constituted therebefore under Order 6 Rule 17 CPC prior to its making its pronouncement upon the earlier therebefore therewith with reared objections by the JD qua the executability of the decree put to the execution therebefore, by the decree holder, command of doctrine whereof hereat, stands aroused by the factum qua the apposite endeavour or the assay of JD/petitioner stemming from his ::: Downloaded on - 19/04/2017 00:09:26 :::HCHP 7 aspiration, to thereupon facilitate the learned executing Court to hence proceed to order for the appointment of a local .
commissioner, for discerning, the truthfulness of the objections strived by the JD to hence with the leave of the Court hence reared therein, significantly when they therewithin hold echoings qua the JD hence suo moto begetting compliance vis-
à-vis the mandate of the concurrent conclusive decree(s) of mandatory injunction pronounced upon him, whereas the learned executing Court, has apparently blunted the aforesaid endeavour, though ensuring success thereof, may have enabled the learned executing Court, to, proceed to record an order qua hence the decree of mandatory injunction standing hence satisfactorily executed besides would forestall issuance of coercive process upon the JD/petitioner herein for enforcement of the apposite decree, issuance whereof would prejudice the rights of the JD also may prove to be an unyielding exercise.
Consequently, for forestalling eruption of the eventualities aforesaid, it was rather befitting for the learned executing Court to record an affirmative pronouncement upon the application constituted therebefore by the JD under the provisions of Order 6 Rule 17 CPC.
::: Downloaded on - 19/04/2017 00:09:26 :::HCHP 85. In summa, the ouster by the learned executing Court, of the aforesaid endeavour of the JD, for hence .
facilitating it, to pronounce an order vis-à-vis him qua his thereupon suo motu satisfactorily begetting full satisfaction of the decree put therebefore to execution, rather its proceeding to without the aforesaid apposite averment in respect thereto standing permitted to be incorporated in the objections initially put forth by the JD before the learned executing Court, hence dismiss the apposite objections, has unfailingly prejudiced the rights of the judgment debtor/petitioner herein, whereupon, he, despite his not prior to his nowat challenging along with the order pronounced upon his initial objections, make a prompt challenge upon the verdict recorded upon his application constituted before the learned executing Court under the provisions of Order 6 Rule 17 CPC, hence holds a leverage to assail, it, alongwith his assailing the orders rendered upon his objections, conspicuously, when both the orders aforesaid are closely blended also when the orders previously recorded by the learned trial Court upon the application constituted therebefore under the provisions of Order 6 Rule 17 CPC impinge upon the validity of the subsequently recorded orders by it upon his ::: Downloaded on - 19/04/2017 00:09:26 :::HCHP 9 objections reared therebefore. Tritely also with theirs standing inextricably entwined thereupon with the doctrine of merger .
holding its fullest sway upon both the orders aforerstated, thereupon, despite no communication(s) occurring within the provisions of Section 115 of the CPC qua the petitioner holding the apposite statutory leverage, to, along with the orders pronounced by the learned executing Court upon his objections also assail the previous order recorded by it upon his application constituted therebefore under the provisions of Order 6 Rule 17 CPC, yet he hence holds a right to cast a composite challenge qua it under the extant civil revision.
Moreover, he also holds a right to hereat make a composite challenge with respect to the validity of both the orders, significantly when the aspiration of the JD to incorporate with the leave of the Court, the apposite objections holding unveilings qua his suo moto begetting compliance with the concurrent conclusive decree(s) of mandatory injunction, decree whereof stood put to execution before the learned Executing court, ouster of assays whereof, when impinge upon hence the learned executing Court precluding itself to record an order qua the apposite decree put to execution therebefore standing ::: Downloaded on - 19/04/2017 00:09:26 :::HCHP 10 satisfactorily executed, for recording of an order whereof, it stood constrained to prior thereto order for appointment of a .
local commissioner for discerning truths thereof, whereupon the issuance of an unwanted coercive process for enforcing the apposite decree, would stand rendered unnecessary. In aftermath with both the orders standing closely blended also when the invalidity of the earlier order may ultimately render the subsequent order to also suffer invalidation, thereupon the JD holds the right, to, along with his assailing the subsequently recorded pronouncement made by the learned executing Court upon his objections, to, also constitute an apposite challenge qua the previous order recorded, by it, upon his application constituted therebefore under the provisions of Order 6 Rule 17 CPC, dehors no explicit statutory right qua it occurring within the domain of Section 115 of the CPC. The conferment of the aforesaid leverage vis-à-vis the petitioner herein, emanates on this court expanding, in coagulation with the play hereat of the doctrine of merger, for thereupon achieving judicial expediency, the connotation borne by the coinage "case decided" occurring in Section 115 of the CPC, doctrine whereof for reasons aforestated holds its fullest sway hereat, qua its ::: Downloaded on - 19/04/2017 00:09:26 :::HCHP 11 holding a signification in 'plurality' than in 'singularity', whereupon both orders are amenable to a challenge herebefore .
under a composite petition.
6. Nowat, with this Court holding qua the petitioner holding the apposite just and tenable right to assail both the orders recorded by the learned Executing Court, one upon his application constituted therebefore under the provisions of Order 6 Rule 17 CPC, holding therewithin his objection other than the objections reared earlier thereat therebefore, thereafter the tenacity of the espousal reared herebefore of the learned counsel for the petitioner herein qua the orders recorded therein, by the learned Executing Court suffering from a vice of illegality stands enjoined to be determined. The learned executing Court had declined relief to the JD upon the aforestated application constituted therebefore under provisions of Order 6 Rule 17 CPC, merely on anvil qua thereupon the JD merely for prejudicing the rights of the decree holder hence introducing new cause(s) of action. However, the aforesaid reason(s) propounded by learned Executing Court for hence declining relief to him upon his application constituted therebefore under the provisions of Order 6 Rule 17 CPC is per-
::: Downloaded on - 19/04/2017 00:09:26 :::HCHP 12se flimsy, significantly when he had neither introduced nor contrived, to change or alter the structure of his pleadings held .
in his written statement, endeavor whereof of the JD would tantamount to his entailing the learned Executing Court to impermissibly go behind the decree nor obviously when he did not concert for any de-novo fresh trial of the suit rather apparently was facilitating the learned executing Court, to, without its ordering for issuance of coercive process, for enforcement of the decree of mandatory injunction pronounced upon him, to by appointing of a Local Commissioner hence discern the veracity of the relevant factum probandum, whereas, the learned executing Court by dismissing the aforesaid application, has frustrated the aforesaid compliant endeavour of the JD qua hence apposite decree standing satisfied, whereupon injustice stands perpetuated upon him.
Consequently, the orders recorded upon the application constituted therebefore by the JD under the provisions of Order 6 Rule 17 CPC are quashed thereupon the revision petition stands allowed.
7. Be that as it may, the ground as espoused in the instant petition qua the apposite execution petition instituted ::: Downloaded on - 19/04/2017 00:09:26 :::HCHP 13 before the learned Executing Court, by the decree holder, standing instituted therebefore, beyond the period prescribed .
for its preferment therebefore, hence its standing barred by limitation, grounds whereof stands canvassed to arouse from the factum qua whereas, the learned trial Court pronouncing its apposite verdict on 21.3.1994 whereas, the execution petition standing preferred belatedly on 30.11.2011 before the learned executing Court, hence, its preferment therefore occurring beyond the statutorily prescribed period of three years, thereupon, it stood barred by limitation. However, the aforesaid espousal is meritless. A perusal of order(s) recorded by the learned First Appellate Court on 22.4.1994 unveil qua it staying the execution and operation of the decree impugned thereat. Also this Court on 28.8.1998, while standing seized of a RSA preferred herebefore by the aggrieved defendants likewise stayed the execution of the concurrently recorded decrees of mandatory injunction by both the learned courts below, thereupon with the fiat of the judicial verdicts aforesaid standing suspended, thereupon the decree of the learned trial Court stood hence rendered unexecutable, whereas with the decree holder instituting the apposite petition for execution of ::: Downloaded on - 19/04/2017 00:09:26 :::HCHP 14 the apposite decree within three years since this Court deciding RSA No. 388 of 1998 thereupon, its preferment was within the .
statutorily prescribed period of limitation. Consequently, the aforesaid espousal stands discountenanced.
In view of the above, the instant petition is accepted.
The impugned order recorded by the learned Executing Court upon the application of the JD constituted under the provisions of Order 6 Rule 17 CPC is quashed and set aside as also the orders pronounced upon his objections are also quashed and set aside. The parties are directed to appear before the learned Executing Court on 11.5.2017 whereafter the learned Executing Court shall proceed to decide the aforesaid amended objections of the JD Record be sent back forthwith.
(Sureshwar Thakur), Judge.
12th April, 2017 (kck) ::: Downloaded on - 19/04/2017 00:09:26 :::HCHP