Himachal Pradesh High Court
Rajinder Prasad vs Mukhtiar Singh And Others on 3 August, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No.53 of 2023 Date of Decision: 3.8.2023 .
_______________________________________________________ Rajinder Prasad .......Petitioner Versus Mukhtiar Singh and others ... Respondents _______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 of For the Petitioner: Mr. Kulwant Singh Gill, Advocate.
For the Respondents: Mr. Romesh Verma, Senior Advocate with rt Ms. Shruti Sharma, Advocate.
_______________________________________________________ Sandeep Sharma, Judge(oral):
Being aggrieved and dissatisfied with order dated 31.01.2023 passed by learned Senior Civil Judge, Nadaun, District Hamirpur, H.P., whereby objections having been filed by the petitioner/JD to the execution petition filed by the respondents-DH, came to be dismissed, petitioner/JD has approached this Court in the instant proceedings filed under Section 115 of the Code of Civil Procedure, praying therein to set-aside aforesaid order and allow the objections to the execution petition.
2. Precisely, the facts of the case, as emerge from the record are that the respondents-DH filed civil Suit No. 167 of 2002 for 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 04/08/2023 20:35:01 :::CIS 2possession by way of partition in the year 2002 and same was decreed in favour of the plaintiffs and against the petitioner/JD vide judgment dated 29.10.2011. Vide aforesaid judgment and decree, .
Civil Court below granted following reliefs:-
"(1). The suit of the plaintiffs for preliminary decree of partition and the claim of counter plaintiff No.1 for preliminary decree of partition both are decreed. Out of 84 shares, plaintiffs are co-
owner to the extent of 75/8, defendant No.1 is co-owner to the of extent of 4/84, and defendant Nos. 2 and 3 are co-owner to the extent of 5/84 shares in the suit land comprised in Khata No.23, Khatauni Nos.45 to 46, Khasra No.455 to 459, Kita-5, rt measuring 0-13-70 hectares situated in Mohal Faste Mouza Saproh, Tehsil Nadaun, District Hamirpur, H.P. and they are entitled for separation of their shares accordingly. The decree will be preliminary decree for the purpose of partition. (2). The claim of counter claimant/defendant No.1 that entries showing the plaintiffs as in exclusive possession over Khatauni No.45 are incorrect is allowed to the extent of the structure of defendant No.1 in Ex.DW1/A. (3). A decree of recovery of possession of shop shown in the yellow colour with veranda in Ex.DW1/A is passed in favour of defendant No.1/counter claimant and against plaintiff No.1. A decree of recovery of arrears of rent w.e.f. June 2000 and after determination of tenancy till disposal of the suit is also passed @Rs.300/-per month which are calculated as Rs.40,800/-. The counter claimant shall also be entitled to Rupees 300/- per month till handing over of the possession. The claim for recovery of possession and arrears as well as use and occupation charges with future use and occupation charges shall stand dismissed in case the court fee is not filed ::: Downloaded on - 04/08/2023 20:35:01 :::CIS 3 within 30 days on the amount of Rs. 40,800/-. Costs to follow the event. For reliefs at No.2 and 3, the decree shall be a final decree. A decree sheet be drawn up accordingly and file after completion be consigned to record room."
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3. Though, aforesaid judgment and decree was laid challenge in appeal upto this Court by way of RSA No.362 of 2015, but same was dismissed vide judgment dated 28th March, 2019, as a result of which, judgment sought to be executed has attained finality.
of Since despite there being aforesaid judgment and decree, petitioner/JD failed to give possession of shop shown in yellow colour rt with veranda in Ex.DW1/A, respondents/DH were compelled to institute execution proceedings in the Court of learned Senior Civil Judge, Nadaun, District Hamirpur, H.P., wherein petitioner-JD filed objections (Annexure P-3). Precisely, the prayer for execution made on behalf of the respondents/DH came to be refuted on behalf of the petitioner-JD on the ground that judgment and decree sought to be executed is un-executable for the reason that at present, there is no shop or structure present on the spot.
4. Learned Executing Court below on the basis of the pleadings adduced on record, rejected the objections vide order dated 31.01.2023 and allowed the execution petition, thereby issuing warrant of possession against the petitioner-JD. In the aforesaid ::: Downloaded on - 04/08/2023 20:35:01 :::CIS 4 background, petitioner-JD has approached this Court in the instant proceedings, praying therein to set-aside aforesaid order.
5. Having heard learned counsel for the parties and perused .
material available on record vis-à-vis reasoning assigned in the order impugned in the instant proceedings, this Court finds no merit in the present petition and as such, same deserves outright dismissal.
6. Precisely, case as has been put forth by the petitioner of and has been further canvassed by Mr. K.S.Gill, learned counsel representing the petitioner is that since shop in question stands rt collapsed, as a result of which, portion on which shop was existing has become part of the suit land, judgment and decree sought to be executed cannot be executed till the time land is partitioned interse parties. However, aforesaid plea setup by the petitioner has been rightly negated by Executing Court on the ground that while passing judgment and decree dated 29.10.2011, Court has categorically ordered in para-3 of the relief that possession of shop shown in yellow colour with verandah in Ex.DW1/A shall be handed over to respondent-DH. Apart from above, this Court finds from the perusal of the order impugned in the instant proceedings that no material ever came to be placed on record to establish factum with regard to collapse, if any, of the shop in question.
::: Downloaded on - 04/08/2023 20:35:01 :::CIS 57. Leaving everything aside, this Court is of the view that since structure stands specified in the judgment decree sought to be executed Ex.DW1/A, Executing Court rightly ignored objections .
raised by the petitioner because execution petition is only meant to ensure compliance of the mandate contained in the judgment and decree sought to be executed. Apart from above, this Court finds from the bare reading of judgment dated 28th March, 2019 passed by of this Court in RSA No.362 of 2015 that similar plea was raised by the petitioner-JD in the aforesaid appeal, but such plea was outrightly rt rejected and as such, otherwise petitioner/JD is estopped from raising such plea in the execution petition.
8. Consequently, in view of detailed discussion made hereinabove, this Court finds no merit in the present petition and accordingly same is dismissed being devoid of any merit alongwith pending applications, if any. Interim order, if any, is vacated.
(Sandeep Sharma), Judge August 3, 2023 (shankar) ::: Downloaded on - 04/08/2023 20:35:01 :::CIS