Himachal Pradesh High Court
Som Parkash vs Vinod Kumar on 16 August, 2018
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Revision No. 115 of 2011
Decided on: 16.08.2018
.
Som Parkash
.......Petitioner
Versus
Vinod Kumar
......Respondent
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1 No
For the petitioner: Mr. Bimal Gupta, Senior
Advocate with Ms. Rubeena
Bhatt, Advocate.
For the respondent: Mr. Karan Singh Kanwar,
Advocate.
Dharam Chand Chaudhary, Judge (Oral)
Order dated 08.07.2011 passed in Execution Petition No. 4/10 of 2003 and a separate order of that very date in an application under Order 26 Rule 9 CPC are under challenge before this Court in this petition.
2. The judgment and decree sought to be executed has been passed by learned Additional District Judge, Sirmour at Nahan, H.P. in Civil Appeal No. 82-N/13 of 2001, whereby while allowing the appeal partly, the suit was decreed to the effect that 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 23/08/2018 22:57:34 :::HCHP 2the respondent-JD shall at his own expense pull-down that portion of construction shown in site plan (Ext.
.
PW-7/E-I) to the report of Local Commissioner (Ext.
PW-7/E-II), which has been raised by him in violation of the approved plan (Ext. PW-7/A). Since the respondent-JD failed to demolish the construction so raised by him therefore, Execution Petition No. 4/10 of 2003 came to be filed by the petitioner-DH for execution of the judgment and decree in the executing Court below.
3. One Kailash Nath, stranger to the suit has filed objections in the execution proceedings. Learned executing Court after taking on record the response of the petitioner-DH has dismissed the objections and issued the warrant for execution of the decree to the Tehsildar, Nahan, District Sirmour, H.P. The Tehsildar had filed the report qua execution of the decree on the spot. The petitioner-DH, however, has preferred the objections to the report of Tehsildar after taking on record the response of the respondent-JD to the objections, only one issue came to be framed on 26.09.2005, which reads as follows:-
::: Downloaded on - 23/08/2018 22:57:34 :::HCHP 31. Whether the report dated 27.07.2005 is totally false and against the facts? OPDH.
.
4. Additional issues were also framed on 26.08.2009, which also reads as follows:-
1. Whether the JD has not obeyed the decree dated 12.07.2002 willfully? OPDH
2. Relief.
5. Learned executing Court had thereafter put both the parties on trial. In the meanwhile, application under Order 26 Rule 9 CPC came to be filed by the petitioner-DH with a prayer to order local investigation so that the factual position qua building in execution of the decree is actually demolished on the spot.
Learned executing Court after having taken on record the evidence produced by the parties on both sides and on hearing learned counsel on both sides has dismissed the objections raised by the petitioner-DH and also the application filed for local investigation and to the contrary dismissed the execution petition as fully satisfied vide orders under challenge in this petition.
6. I have heard Mr. Bimal Gupta, learned Senior Advocate assisted by Ms. Rubeena Bhatt, ::: Downloaded on - 23/08/2018 22:57:34 :::HCHP 4 Advocate on behalf of the petitioner and Mr. Karan Singh Kanwar, learned counsel on behalf of the .
respondent-JD and also gone through the entire material available on record. The evidence as has come on record by way of own statement of petitioner-DH (PW-1), Lilyakat Ali (PW-2), Junior Engineer, Municipal Council, Nahan and Bal Kishan (PW-3), who has produced the record. The Tehsildar in connection with execution of the decree visited the spot on 27.07.2005, however, unauthorized construction raised by the respondent-JD could only be demolished partly. According to PW-2, the Tehsildar while finishing the work for the day told him that the demolition work will be resumed in due course and they (Municipal Council) will be informed accordingly.
7. On the other hand, the evidence produced by the respondent-JD, however, reveals that the unauthorized construction stands demolished in terms of decree and as nothing remained there to be executed on the spot, therefore, the decree has rightly been dismissed as fully satisfied. Since the evidence produced by the petitioner-DH comprising oral as well ::: Downloaded on - 23/08/2018 22:57:34 :::HCHP 5 as documentary prima-facie suggests that the unauthorized construction could only be demolished .
completely on 25.07.2005. Therefore, in the considered opinion of this Court, the local investigation in the matter should have been ordered and actual and factual position in this regard taken on record before the objections to the report of Tehsildar raised by the petitioner-DH. Therefore, not only the impugned order passed in execution petition but that in the application under Order 26 Rule 9 CPC passed on 08.07.2011 are quashed and set aside and the execution proceedings are remanded to learned executing Court below for fresh disposal in accordance with law and after taking on record the report of the Local Commissioner. It is left open to learned executing Court to appoint the Local Commissioner on such terms and conditions as deemed appropriate.
The parties through learned counsel representing them are directed to appear before learned executing Court below on 19.09.2018.
::: Downloaded on - 23/08/2018 22:57:34 :::HCHP 69. The petition is accordingly allowed and stands disposed of. Pending application(s), if any, shall .
also stand disposed of.
(Dharam Chand Chaudhary)
Judge
August 16, 2018
(naveen)
r to
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