Uttarakhand High Court
Kuldeep Kumar Sharma vs Pradeep Kumar Sharma & Ors on 22 November, 2012
Author: B.S.Verma
Bench: B.S.Verma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No.2258 of 2012 (M/S)
Kuldeep Kumar Sharma
... Petitioner
Vs.
Pradeep Kumar Sharma & Ors.
...Respondents
Hon'ble B.S.Verma, J. (Oral)
Heard Mr. Siddhartha Sah, learned counsel for the petitioner and Mr. Lokendra Dobhal, learned counsel for the respondent nos.1 to 4.
By means of this writ petition, the petitioner has sought a writ in the nature of certiorari for quashing the order dated 6.1.2011 passed by Civil Judge (Junior Division) Kashipur, in civil execution case no.12/1997 as well as the judgment and order dated 27.8.2012 passed by Additional District Judge, Kashipur, in civil revision no.11/11.
Briefly stated, facts of the case are, that execution proceedings were initiated by the predecessor of the respondent nos.1 to 4, namely, Girish Chandra Sharma, who died during the pendency of the execution proceedings and thereafter respondent nos.1 to 4 were substituted as his legal heirs.
By a perusal of the impugned orders, it transpires that the decree holders have applied for eviction of the petitioner/judgment debtor from the property mentioned 2 in the application as schedule Ka, Kha and Ga. It is contended on behalf of the petitioner that the application was also moved before the court to issue a Commission. In that application, all the three properties, i.e. Ka, Kha and Ga, were mentioned, while the suit was decreed for the property mentioned in schedule 'Kha' and 'Ga'. This fact is not disputed.
A perusal of the plaint itself shows that the plaintiff has pleaded in paragraphs 3 and 10 that property mentioned in schedule 'Kha' and 'Ga' is a part of property 'Ka' and that the property mentioned in schedule 'Ka' is entire property. Objections to this effect were filed by the petitioner stating that no execution proceeding can be initiated regarding property 'Ka'. Same was rejected by the impugned order dated 6.1.2011. Revision preferred against the order dated 6.1.2011 has also been dismissed.
By a perusal of the impugned orders, judgment and decree and the plaint, it appears that property mentioned in schedule 'Kha' and 'Ga' is part of property 'Ka'.
In the light of the aforesaid, it is clarified that the possession shall be taken in respect of property mentioned in schedule 'Kha' and 'Ga' only, for which suit was decreed and as pleaded in the plaint with boundaries against the petitioner/judgment debtor.
Issue notice to the respondent nos. 5 to 11 returnable within four weeks, by which time the said respondents may also file counter affidavit.
3Respondent nos.1 to 4 are also allowed four weeks' time to file counter affidavit.
Thereafter two weeks' time is allowed to the petitioner to file rejoinder affidavit, if any.
List after six weeks for admission/orders.
Certified copy of the order shall be made available today on payment of usual charges.
(B.S.Verma,J.) 22.11.2012 Rajni