Amar Nath vs Shakuntala
2012 Latest Caselaw 4041 Del

        *         IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Judgment delivered on 10.07.2012

+       Ex. S.A 4/2012

        AMAR NATH                                              ...Appellant

                                     Versus

        SHAKUNTALA                                          ...Respondent


Advocates who appeared in this case:
For the Appellant : Mr. Vikas Sharma, Advocate
For the Respondent      : Nemo

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                           JUDGMENT

V.K.JAIN, J. (ORAL)

CM No.11332/2012 (exemption)

Exemption allowed subject to all just exceptions.

EX.S.A. 4/2012 & CM No.11331/2012 (stay)

1. This appeal is directed against the order dated 13.3.2012 passed by the

learned Additional District Judge in RCA No.31/2009, which the appellant filed

against the order of Executing Court dated 7.11.2009. The facts giving rise to filing

of this appeal can be summarized as under.

2. A decree for possession of one room house number 16/711, Gali No.12,

Military Road, Bapa Nagar, New Delhi was passed by the learned Civil Judge on

17.3.1986 in favour of the respondent herein Smt. Shakuntala and against one Om

Prakash. The execution petition filed by Smt. Shakuntala Devi was dismissed by

the learned Civil Judge vide order dated 19.11.1996 on the ground that the

description of the property, which had been given in the decree, was not sufficient

to identify the premises and, therefore, the decree was not executable. The learned

executing court took that the view that it could not change or amend the decree nor

could it take any fresh evidence to identify the premises. The order passed by the

learned Civil Judge was challenged by the decree holder before this Court in Civil

Revision No.1062/1998 which came to be disposed of on 11.10.2004. Allowing the

Revision Petition, this Court observed that the property had been described as

House No. 16/711, Gali No.12, Military Road, Bapa Nagar, New Delhi and there

had been no confusion about its identity at any point of time either before the trial

court or even in the first appeal which the respondent had filed. It was held that

since the description of the property was sufficient to identify it, there was no force

in the objection raised by the respondent which had been upheld in the impugned

order. This Court accordingly set aside the order dated 19.11.1996 and directed that

the decree holder will be at liberty to execute the decree.

3. Vide order dated 7.11.2009, the learned Civil Judge, in execution of the

aforesaid decree issued warrants of possession and further directed that in case

there are more than one room, possession of one room be given to the decree

holder on her identification of that room. It was further directed that in case there is

only one room, the possession of the same would be given to the decree holder.

4. The order passed by the learned Civil Judge was challenged by the appellant

by way of RCA No.31/2009. The learned Additional District Judge disposed of the

appeal with directions to the Executing Court to take evidence from the decree

holder with respect to the identity of the room in question forming party of

property bearing number 16/711, Gali No.12, Military Road, Bapa Nagar, New

Delhi. This is the order passed by the learned Additional District Judge which is

under challenge in this appeal.

5. In my view, the issue as to whether the property subject matter of the decree

had been properly described and was identifiable or not stood concluded by this

Court vide order dated 11.10.2004, which admittedly was not challenged by the

judgment debtor. In view of the order passed by this Court on 11.10.2004, the

learned Civil Judge was absolutely justified in issuing warrants of possession with

directions that possession of one room shall be given to the decree holder on

identification of that room by her. He was also right in directing that in case there is

only one room, possession of that room will be given to the decree holder. The

learned counsel for the appellant states that he is not aware as to how may room are

there in this property.

6. In my view, the learned Additional District Judge acted contrary to the order

passed by this Court on 11.10.2004 in directing evidence to be taken with regard to

the identity of the room in question. In view of the order passed by this Court on

11.10.2004, he ought to have dismissed the appeal filed by the Objector/Appellant.

Since the order dated 13.03.2012 passed by the learned Additional District Judge

has not been challenged by the decree holder, nothing further can be done in the

matter. However, as far as the present appeal is concerned, I do not find absolutely

no merits in the same. This appeal is nothing but yet another attempt to thwart the

execution of the decree which was passed about more than 26 years ago. The

appeal is accordingly dismissed. However, there shall be no orders as to costs.

V.K. JAIN, J JULY 10, 2012 rd