Himachal Pradesh High Court
Jagat Singh And Others vs Roshan Lal on 22 August, 2025
1 .
Jagat Singh and others versus Roshan Lal Civil Revision No. 117 of 2025 22.08.2025 Present: Mr. Ajay Kumar, Senior Advocate, with Mr. Gautam Sood, Advocate, for the petitioners/ J.Ds.
respondent.
r to Mr. Neeraj Gupta, Senior Advocate, with Ms. Rinki Kashmiri, Advocate for the D.H./ CMP No.20227/2025 The Co-ordinate Bench of this Court had passed a decree of possession of the suit land comprised in Khewat No.43 min, Khatauni No.102, Khasra No. 1635 in favour of the plaintiff and against the defendants in R.S.A. No.657 of 2008 along with Cross-objections No. 259 of 2009. The defendants were directed to demolish the wall raised by them on the suit land, if so desired, within a period of two weeks from the date of the decree, failing which the plaintiff was held entitled to the possession of the suit land with all annexures made to it, including the wall raised by the defendants.
2. The decree holder filed an application for execution of the judgment and decree passed by this court before the learned Senior Civil Judge, Court No. 1, Sundernagar, District Mandi, H.P. (learned Executing Court).
3. The J.D.s filed objections before the learned Executing Court, asserting that the decree is void ab initio. The decree was passed to demolish the boundary wall raised by ::: Downloaded on - 25/08/2025 21:25:22 :::CIS 2 .
them comprised in Khasra No. 1635, measuring 56 square meters situated in Mohal Pungh 26/7, Tehsil Sundernagar, District Mandi but no wall exists over the land comprised in Khasra No.1635, however, is the wall existing over Khasra No. 1875, which is not the suit land. One of the co-sharers was not arrayed as a party. No map/ aks tatima was attached to the plaint. Khasra No.1635 fell within the controlled width of H.P. Public Works Department over which the Civil Court had no jurisdiction in view of Section 19 of the H.P. Road Side Land Control Act. The decree was obtained by playing fraud. The land was acquired by the H.P. Public Works Department for the construction of the Shimla-Mandi Road via Bilaspur vide Notification No.R.24191/59 date3d 24.09.1959 under the provisions of Section 6 of the Land Acquisition Act, 1894.
Hence, it was prayed that the execution petition be dismissed.
4. Objections were opposed by the DH by filing a reply.
5. The learned Executing Court vide the impugned order dated 07.08.2025 dismissed the objections after holding that the J.Ds claimed adverse possession over the entire suit land and since the D.H. was held entitled to the possession of the entire suit land, therefore, the J.Ds were bound to deliver the possession of the suit land, including the boundary wall.
The J.D.s could not withdraw their objection. The plea taken by ::: Downloaded on - 25/08/2025 21:25:22 :::CIS 3 .
the J.D.s/objectors that the area of the suit land was 37 square meters and not 56 square meters was based upon the demarcation report in which the D.H. was not arrayed as a party. Non-filing of aks tatima was not relevant because the relevant shajra/map of the estate can be used to determine the area. Section 19 of the H.P. Road Side Control Act did not apply in the absence of any evidence that the land fell within the controlled width. Even otherwise, the J.D.s were in possession, and D.H. was held entitled to the possession.
6. Aggrieved by this order, the present petition has been filed along with an application for stay of the warrant issued by the learned Trial Court.
7. I have heard Mr. Ajay Kumar, Senior Advocate, assisted by Mr Gautam Sood, Advocate for the petitioners/J.Ds.
and Mr. Neeraj Gupta, Senior Advocate, assisted by Ms Rinki Kashmiri, Advocate for the respondent/ D.H.
8. Mr. Ajay Kumar, learned Senior Counsel for the petitioners/J.Ds, submitted that the Court is duty-bound to conduct an inquiry into the objections filed under Section 47 of the Civil Procedure Code (CPC), and it is impermissible for the Court to dismiss the petition without taking the evidence. He relied upon the judgment of this Court in Sohan Lal versus Sadhu Ram, latest HLJ 2003(HP) 154, in support of this submission. He further submitted that warrant of possession is ::: Downloaded on - 25/08/2025 21:25:22 :::CIS 4 .
to be executed tomorrow and the report of the demarcation obtained by the J.Ds shows that wall does not exist over Khasra No. 1635 but on Khasra No. 1875/1 and in case subsequently, it is found out that the wall exists on Khasra No. 1875/1, the J.Ds will suffer irreparable loss because the wall belonging to them and existing on their land would be demolished. He further submitted that D.H. cannot extend the decree to take possession of the land located adjacent to the suit land, and a sufficient cause is made out for issuing the injunction order and conducting an inquiry.
9. Mr. Neeraj Gupta, learned Senior Advocate for the D.H., submitted that the question whether the wall exists over Khasra No.1635 or not has been decided by this Court finally, and it is impermissible for the Executing Court to go behind the decree and hold that the wall does not exist on the suit land, but on some other land. The inquiry can be conducted when the factual dispute has been raised by the objector and not when the objections have been filed to delay the proceedings. Hence, he submitted that no case for the grant of an ad-interim injunction is made out.
10. I have given considerable thought to the submission made at the bar and have gone through the records carefully.
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11. The judgment of Sohan Lal (supra) was considered by this Court in Hari Dass vs. Amar Pal and Ors. (21.10.2005 -
HPHC): MANU/HP/0305/2005, and it was held that the Executing Court is not bound to conduct an inquiry in every case after framing the issues. If objections are prima facie frivolous, vague and amount to an abuse of process of the Court, and do not give rise to a triable issue, they can be dismissed summarily. It was observed:
"9. In view of the law laid down in the aforementioned authorities, in my opinion, it would be clear that the executing Court is competent to dismiss the objection petition summarily/without holding any inquiry and without framing of issues and without recording of evidence, if no triable issue arises from the pleadings and in case it is found that the objection petition has been filed to delay the execution and would result in the abuse of the process of the Court.."
12. Thus, in view of the clarification provided by this Court, the submission that the Executing Court is bound to conduct an inquiry in every case where objections have been filed by the J.Ds/Objectors cannot be accepted. The Court has to determine whether a triable issue arises or the objections have been filed to delay the proceedings. Thus, the first submission of Mr. Ajay Kumar, learned Senior Advocate for the petitioners/ J.D.s, that the Court is bound to conduct an inquiry in every case where objections are filed cannot be accepted.
13. It was submitted that the boundary wall does not exist on khasra no. 1635, but on Khasra no. 1875/1 as per the ::: Downloaded on - 25/08/2025 21:25:22 :::CIS 6 .
demarcation obtained by the objectors/JDs. This submission will not help the petitioners/JDs. A similar situation arose before this Court in Goverdhan versus Rattan Lal, CMPMO No. 150 of 2008, decided on 03.06.2008 , wherein a decree for possession was passed by this Court of the suit land along with house-cum-shop in favour of the plaintiffs and against the defendants. The D.H. filed the execution petition. The revenue authorities conducted the demarcation and found that there was an error in the tatima attached to the decree of this Court, and the decree could not have been executed as it stood. This Court, speaking through Hon'ble Mr. Justice Deepak Gupta, Judge (as his Lordship then was), held that the revenue authorities cannot point out the errors in the earlier reports/documents prepared by them. It was observed:
"This Court has noted in a number of cases that the revenue authorities give certain reports or documents during the pendency of the case, but when the time comes to execute the decree passed on the basis of such reports/documents, the revenue authorities take a U- turn and point out errors in the earlier reports/documents prepared by them. They cannot be permitted to do so."
14. In Jagdish Chand versus Lajja Ram, CMPMO No.142 of 2008, decided on 3.6.2008, a decree of possession was passed by the Court based on the report of demarcation.
Subsequently, when the decree was put into execution, the revenue authorities stated that the earlier report was incorrect.
This Court speaking through Hon'ble Mr. Justice Deepak Gupta, ::: Downloaded on - 25/08/2025 21:25:22 :::CIS 7 .
Judge (as his Lordship then was), held that the revenue authorities cannot sit over the judgment of the Civil Court by issuing contradictory reports. It was observed:
"This Court has come across a number of cases where the revenue authorities, during the pendency of the case, give reports or furnish documents on the basis of which the suit is decided. When the decree passed in rterms of the said report or documents have to be executed, the revenue authorities themselves turn around and deny the authenticity and correctness of the earlier report or documents. In case the revenue authorities are allowed to sit over the judgment of the Civil Courts, it will create havoc. No court, not even an Executing Court, can go behind a decree. xxxx Once, a revenue officer gave a report on the basis of which a decree was passed. Now the second revenue officer cannot ask the court to virtually re-call its earlier decree to review its earlier order, especially when the decree was not challenged by any party.
15. These two judgments take care of the submission raised by Mr. Ajay Kumar, learned Senior Counsel for the petitioners/J.Ds, that in case it is found out subsequently that the wall does not exist over the Khasra No.1635 but on some other land, the J.Ds will suffer irreparable loss. This cannot happen as it is not open to any person, including revenue authorities, to go into the correctness of the decree passed by this Court and the situation contemplated by learned Senior Counsel can never arise.
16. Once this Court has held that a wall exists over Khasra No. 1635, it has to be treated to be existing on 1635, and no person, including a revenue authority, can sit over the ::: Downloaded on - 25/08/2025 21:25:22 :::CIS 8 .
judgment of this Court to tell the Court that the judgment and decree passed by it is incorrect. Therefore, the submission that the JDs will suffer an irreparable loss if the wall is found in some other khasra number cannot be accepted.
17. r Mr. Ajay Kumar, learned Senior Counsel for the J.Ds, submitted that the decree has been passed with respect to Khasra No.1635, and the execution is also for Khasra No.1635.
Therefore, a direction be issued to the revenue authorities to execute the decree and demolish the wall, if it exists over Khasra No. 1635 and not otherwise. Nothing is required to be said regarding this submission, except that it adds words to the decree, which do not exist in the decree. It is impermissible for the executing Court to add words to the decree passed by the Court. In Sanwarlal Agrawal v. Ashok Kumar Kothari , (2023) 7 SCC 307: 2023 SCC OnLine SC 168, the Court held that the decree was ambiguous and proceeded to construe it by referring to the emails exchanged between the parties. It was held to be impermissible by the Hon'ble Supreme Court. It was observed at page 314:
16. This Court has time and again cautioned against the Execution Court adopting such an approach.
In Topanmal Chhotamal v. Kundomal Gan-
garam [Topanmal Chhotamal v. Kundomal Gan- garam, AIR 1960 SC 388] , a three-Judge Bench held as follows : (AIR p. 390, para 5) ::: Downloaded on - 25/08/2025 21:25:22 :::CIS 9 .
"5. ... It is a well-settled principle that a court executing a decree cannot go behind the decree :
it must take the decree as it stands, for the de- cree is binding and conclusive between the par- ties to the suit".
17. Yet again, in Meenakshi Saxena [Meenakshi Saxena v. ECGC Ltd., (2018) 7 SCC 479 : (2018) 3 SCC (Civ) 654] it was reiterated that : (SCC p. 486, r para 17) "17. The whole purpose of execution proceed- ings is to enforce the verdict of the court. Exe- cuting court while executing the decree is only concerned with the execution part of it but nothing else. The court has to take the judgment in its face value. It is settled law that executing court cannot go beyond the decree. But the diffi-
culty arises when there is ambiguity in the de- cree with regard to the material aspects. Then it becomes the bounden duty of the court to inter- pret the decree in the process of giving a true effect to the decree. At that juncture the execut- ing court has to be very cautious in supplement- ing its interpretation and conscious of the fact that it cannot draw a new decree. The executing court shall strike a fine balance between the two while exercising this jurisdiction in the process of giving effect to the decree."
18. The executing Court has to take the decree as it stands, and it is impermissible to issue a direction that the wall be demolished if it exists over khasra no. 1635 cannot be accepted.
19. It was submitted that the suit land was identified in the cited cases, but the land is not identifiable in the present case. This submission will not help the petitioners/JDs. Learned Trial Court had rightly held that the decree was passed ::: Downloaded on - 25/08/2025 21:25:22 :::CIS 10 .
regarding the whole khasra number and not part of the land, and the question of identification is not relevant. It was laid down by this Court in Pritam Chand vs. Mohinder Paul and Ors.
(08.05.2006 - HPHC): MANU/HP/0074/2006 that where the land could be identified with reference to the khatauni, the land is identifiable. It was observed:
"7. Coming to question No. 3, the first appellate Court has held that the specification of the property has not been given, and in the absence of an accurate specification, it would be impossible to execute the decree, and hence no decree could have been passed by the trial Court. The view taken by the learned District Judge is not correct. No doubt, the suit property is described by min numbers and the defendants have claimed their possession over two such min numbers, but every min number mentioned in the plaint is distinguishable from other similar min numbers by reference to Khatauni numbers, which are different. A bare perusal of Ext. P-1, which is a copy of Jamabandi for the year 1977-78, makes the position clear. Thus, the first appellate Court was not justified in reversing the decree of the trial Court on the ground that the suit property is not identifiable, on account of Tatima of the min numbers, by which it is described, having not been submitted."
20. Hence, the submission that the land was not identifiable and the decree cannot be executed is not acceptable.
21. Section 19 of the H.P. Road Side Land Control Act bars the jurisdiction of the Civil Court to entertain or decide any question relating to the matters falling under the Act or the ::: Downloaded on - 25/08/2025 21:25:22 :::CIS 11 .
Rules framed thereunder. In the present case, no question under the Act is being adjudicated. The Court is not determining whether the land falls within the controlled width or not. The Court is only determining the question of the delivery of possession. Therefore, provisions of Section 19 will not bar the jurisdiction of the Court.
22. It was submitted that the decree was obtained by practising fraud. It was laid down by the this Court in State Bank of India Versus Indira Building Works & Ors. 2007 (2) Shimla Law Cases 349, that a plea of fraud cannot be taken before the executing Court. It was observed:
"8. The High Court of Delhi in Addisons Paints and Chemicals Ltd. v. M/s.Sant Ram Parma Nand and others, AIR 1976 Delhi 137, has held:-
"The question whether the compromise deed was obtained from the defendants/ judgment- debtors by misrepresentation or fraud is not one which relates to the inherent jurisdiction of the Court. The Executing Court has no jurisdiction to go into the question whether the compromise agreement on which the decree was based was valid or binding on the judgment-debtors, for that would be defeating the decree on the allegation that it was obtained by fraud. If the consent to this compromise deed was obtained by fraud or misrepresentation, the agreement is still a contract but voidable at the option of the parties whose consent was so obtained. The contract continues to be valid till the defrauded party elects to avoid it. There was no rescission of the compromise till the date of passing of the decree and the Court could validly act on that compromise and pass a decree. Under Order 23, Rule 3 of the Code of Civil Procedure, the Court ::: Downloaded on - 25/08/2025 21:25:22 :::CIS 12 .
had jurisdiction to pass a decree where it was proved to the satisfaction of the Court that the suit has been adjusted by any lawful compromise.
Compromise is an adjustment of the controversies in the suit by mutual concession. The Court could not be said to be lacking in inherent jurisdiction, if it acted upon a compromise which had not been rescinded, even if it is assumed that it was obtained by misrepresentation or fraud. The decree is not a nullity but might at best be invalid. A valid decree cannot be challenged in the execution proceedings. The consent/compromise decree being only the contract between the parties with the seal of the Court superadded to it, a suit may lie to set aside that decree on any of the grounds on which the contract is voidable such as fraud, or misrepresentation, but such a question cannot be raised in the Executing Court. The questions relating to misrepresentation or fraud do not relate to the execution of a decree but relate to impeaching the decree itself as being voidable or void having been obtained on a compromise, which itself was obtained by fraud or misrepresentation. It amounted to a plea that the decree was voidable or even void or that it was wrongly passed by the Court. Again if the question of want or absence of jurisdiction cannot be determined without an amount of research the Executing Court is not competent to permit that enquiry to be made which would require the Court to take evidence. Section 47 of the Code of Civil Procedure is not intended to be used for the purpose of investigating matters relating to the validity of the decree itself when on the face of it there is nothing illegal about the decree. The Court executing the decree is not competent to embark on an enquiry into facts, which if established, will tend to show that the Court passing the decree had no jurisdiction to do so. The Executing Court can only go into the question whether or not the decree is a nullity, where on the face of the decree it is apparent that the Court passing the decree had no jurisdiction or there are patent reasons for doubting the ::: Downloaded on - 25/08/2025 21:25:22 :::CIS 13 .
inherent jurisdiction of the Court. "When a decree is made by a Court which has no jurisdiction to make objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. Where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which would have been but have not been raised, r the Executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction". See V.D. Modi v. Abdul Rahman AIR 1970 SC 1475, (supra). The questions relating to the obtaining of the compromise by fraud and misrepresentation, therefore, do not relate to the execution of the decree and are thus outside the scope of the objections under section 41 of the Code of Civil Procedure."
9. The remedy of the respondent Judgment Debtor lies elsewhere. He cannot be allowed to urge this point in proceedings under section 47 of the Code of Civil Procedure."
23. Therefore, this plea could not have been adjudicated by the Court.
24. In view of the above, no triable issue arose before the learned Trial Court and the learned Executing Court was justified in dismissing the objection without conducting an inquiry. Hence, no case is made out for the grant of an ad interim injunction at this stage.
25. It is expressly made clear that the observations made hereinabove shall not have any effect on the decree passed by this Court, warrant of possession issued by the learned Executing Court, or merits of the case.
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26 Reply, if any, be filed within two weeks, and the matter be listed thereafter.
(Rakesh Kainthla) Judge August 22, 2025 (y.s) ::: Downloaded on - 25/08/2025 21:25:22 :::CIS