Govind Ram vs D.J. Ghazipur And 3 Others
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Allahabad High Court

Govind Ram vs D.J. Ghazipur And 3 Others on 1 May, 2025

Author: Rohit Ranjan Agarwal

Bench: Rohit Ranjan Agarwal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:69196
 
Court No. - 9
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 2899 of 2016
 

 
Petitioner :- Govind Ram
 
Respondent :- D.J. Ghazipur And 3 Others
 
Counsel for Petitioner :- Rajni Ojha,Ravindra Nath Chaubey
 
Counsel for Respondent :- ,Narendra Deo Upadhyay,Vinay Bhushan Upadhyay
 

 
Hon'ble Rohit Ranjan Agarwal,J.
 

1. Heard learned counsel for the petitioner and Sri Vinay Bhushan Upadhyay, learned counsel for respondent no. 3.

2. The plaintiff-petitioner had instituted a civil suit against defendant for encroachment made over public pathway. The relief claimed in the suit was for removal of obstruction which was there on the pathway. The suit filed by plaintiff was decreed against which the defendant did not prefer any appeal and the judgment became final between the parties inter se. An Execution Case No. 3 of 1987 was filed in which an Advocate Commissioner was appointed who submitted his report being Paper No. 120C wherein the Advocate Commissioner had specifically mentioned that while the property in dispute was being identified and process of execution had started for removing the obstruction therein, the police force which was there for assisting in carrying out the execution work left the spot which resulted in halting the execution proceedings. The plaintiff-decree holder moved an application on 26.10.2012 before executing court, which was registered as Paper No. 116C, stating the said fact. The executing court relying upon the Advocate Commissioner's report held that the decree stood satisfied as the obstruction till the house of plaintiff was removed. The plaintiff-decree holder preferred a Civil Revision No. 35 of 2013 which has been rejected by order impugned.

3. Learned counsel for the petitioner submits that the entire execution proceedings was not carried out and decree till date has not been satisfied as the demolition work has halted as the police party had left. According to her, the executing court should have asked for fresh report by Advocate Commissioner or should have directed for carrying out the demolition activity for removing the obstruction standing at the site for getting the decree executed.

4. Learned counsel for judgment debtor submits that the report itself indicates that the entire decree was executed and the executing court cannot go behind the decree and grant the decree which was not granted by trial court.

5. I have heard respective counsel for the parties and perused the material on record.

6. From perusal of the Paper No. 120C which is Advocate Commissioner's report, it is clear that after identifying the encroachment standing at the site, the demolition started and till the house of the plaintiff whatever encroachment was standing was removed but the police party in between left the site and demolition was not completed. Immediately, the plaintiff-decree holder on 26.10.2012 had moved an application that entire demolition had not being carried out and decree has not stood satisfied as it is evident from the report of the Advocate Commissioner. The executing court as well as the revisional court fell into error by holding that decree stood satisfied as entire demolition was carried out and the encroachment has been removed.

7. From the perusal of the report of Advocate Commissioner 120C, I find that the decree till date has not been satisfied and encroachment has not been removed as it is evident from the report which is Paper No. 120C.

8. In view of said fact, the writ petition stands allowed. Both the order dated 06.11.2015 and 17.12.20212 are hereby set aside.

9. The matter is remitted back to executing court to appoint fresh Advocate Commissioner and get fresh report in regard to obstruction standing over the disputed site. In case, there is any encroachment left over the disputed site from the judgment and decree of the year 1985, the executing court shall get the same removed.

10. The aforesaid exercise shall be carried out by executing court within a period of six months, keeping in mind the recent judgment of Hon'ble Apex Court rendered in Periyammal vs. Rajamani, 2025 SCC OnLine SC 507 wherein the Apex Court, on 06.03.2025, considering the earlier judgment of the Apex Court rendered in case of Rahul S. Shah v. Jindendra Kumar Gandhi reported in (2021) 6 SCC 418 had held that the execution proceedings should be concluded expeditiously.

Order Date :- 1.5.2025

V.S.Singh