Delhi High Court
Shri Bhagwan Das Nasa vs Shri Ajit Singh Through Lrs. on 18 August, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 18.08.2011
+ CM(M) No. 1502/2005
SHRI BHAGWAN DAS NASA ........... Petitioner
Through: Mr. J.C. Mahindro, Advocate.
Versus
SHRI AJIT SINGH THROUGH LRS ..........Respondent
Through: Mr. Himal Akhtar, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1 The order impugned before this Court is the order dated
07.07.2004 vide which the execution petition filed by the decree
holder seeking execution of the decree dated 25.08.1977 had been
dismissed.
2 Brief facts are that a suit for mandatory injunction had been
filed by the plaintiff; decree for mandatory injunction had been
passed on 25.08.1977. In terms of that decree, the defendant had
been directed to demolish the unauthorized construction
comprising of two rooms and a partition wall shown in yellow
colour in the site plan Ex. PW-7/6. The judgment debtor had filed
an appeal against that decree; a compromise was effected
between the parties before the first appellate court; this was in
terms of an application under Order 23 Rule 3 of the Code of Civil
Procedure (hereinafter referred to as the 'Code') filed by both the
parties jointly for recording the terms of their compromise. The
decree dated 25.08.1977 stood modified; in terms of the
aforenoted compromise, the appeal was dismissed; the terms of
compromise were contained in the application under Order 23
Rule 3 of the Code Ex. A-1. Ex. A-1 had recited that no further
addition, alteration or construction in any part of the premises
shall be made by the tenant; the tenant had further undertaken to
pay a sum of `40/- per month w.e.f. 01.08.1978 for the use of the
additional construction already carried out by him; further the
landlord shall not revoke the license during the occupation of
these premises and this arrangement would continue till such
time that the said additional construction is removed by any
Government authority. In terms of the aforenoted undertakings
given, the judgment debtor had withdrawn his appeal. This was
vide judgment and decree dated 05.12.1978.
3 Thereafter the contention of the landlord was that
unauthorized construction was raised by the tenant which was a
breach of the undertakings dated 05.12.1978; he had preferred a
contempt petition. That contempt petition was disposed of by the
order of the High Court dated 06.11.1998; the Court had noted
that Ajit Singh (original tenant) had expired, the question of
limitation for initiating contempt also coming in the way, the
petitioner had been advised to move an execution application as
contempt proceedings could not be used for executing an order.
With these directions, the contempt petition had been disposed of.
4 The present execution petition had then been filed. It is
relevant to point out that execution petition had sought the
execution of the decree dated 25.08.1977; it was not of the decree
dated 05.12.1978 which had modified the earlier decree dated
25.08.1977 whereby that decree stood modified. The parties led
evidence before the executing court. The executing court vide its
impugned order had appreciated the fact that the execution had
been sought of the decree dated 25.08.1977 which stood
superseded and merged with the later modified decree dated
05.12.1978; the original decree had lost its force and stood
merged in the compromise decree dated 05.12.1978; this was not
the subject matter of execution petition. In these circumstances,
petition had been dismissed. This order in no manner warrants
any interference. The petition is without merit.
5 Dismissed.
INDERMEET KAUR, J.
AUGUST 18, 2011
a
