Delhi High Court
Rakesh Kumar & Ors. vs Vijay Kumar & Anr. on 21 December, 2022
Neutral Citation Number 2022/DHC/005784
$~40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 21.12.2022
+ EX.F.A. 28/2022 & CM APP Nos.55575-76/2022
RAKESH KUMAR & ORS. ..... Appellants
versus
VIJAY KUMAR & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Achal Gupta and Ms. Alizaah Rais,
Advocates
For the Respondent : Mr. S.D. Singh and Mr. Siddharth Singh,
Advocates
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
TUSHAR RAO GEDELA, J. (ORAL)
[ The proceeding has been conducted through Hybrid mode ]
1. Learned counsel for the Appellants assails the order dated
02.11.2022 whereby the learned Executing Court has dropped the
execution proceedings on the ground that Clause 5 in the Settlement Deed
precludes the Appellants from evicting the occupant on the subject plot
except by way of recovery of possession in accordance with law.
2. Recording the aforesaid, the Executing Court has decided that the
execution petition alongwith the applications have become infructuous
and were disposed of.
3. Learned counsel for the Appellants submits that the impugned order
Signature Not Verified
Digitally Signed
By:VINOD KUMAR
15:04:17
Neutral Citation Number 2022/DHC/005784
as well as the observations made therein are in the teeth of the judgment of
the Supreme Court in Shreenath and Anr. Vs. Rajesh and Ors., (1998) 4
SCC 543, rendered on 13.04.1998 whereby the Supreme Court while
examining the provisions of sub-clause (1) of Order XXI Rule 35 of the
CPC, 1908 had observed that the Executing Court shall deliver the actual
possession of the disputed property to the Decree Holder, if necessary, by
removing occupant who refused to vacate the said property.
4. Learned counsel submits that the learned Executing Court was not
only bound by the dicta of the Supreme Court in Shreenath (supra) but
also the procedure as prescribed in Order XXI Rule 35 and 36 CPC.
Learned counsel for the Respondent who appears on advance notice
submits that no doubt the Petitioner is bound by clause 5 of the Settlement
Deed, however, he has no objection and Respondents No.1 and 2 will not
create any obstruction or hindrance in the execution proceedings.
5. Learned counsel appearing for the Respondent also submits that as
per the terms mentioned in clause 5 of the Settlement Deed, Respondent
Nos.1 and 2 have removed the Pujari who it is informed is since deceased.
Learned counsel submits that Respondent Nos.1 and 2 would assist the
appellant in ensuring that terms of the settlement as recorded in the decree
are implemented.
6. In view of the above submissions as also the dicta laid down by the
Supreme Court in Shreenath (supra) and in terms of Order XXI Rules 35
and 36, this Court deems it fit to direct the learned Executing Court to
revive the proceedings and proceed in accordance with law.
7. With the aforesaid and in view of the consent and position of law,
present appeal and the applications filed herewith are disposed of with no
Signature Not Verified
Digitally Signed
By:VINOD KUMAR
15:04:17
Neutral Citation Number 2022/DHC/005784
orders as to cots.
8. Appellant is directed to appear before the learned Executing Court
on 10.01.2023 alongwith the copy of this order.
9. The order passed today may be transmitted to the learned Executing
Court as per Rules.
TUSHAR RAO GEDELA, J
DECEMBER 21, 2022/yg
Signature Not Verified
Digitally Signed
By:VINOD KUMAR
15:04:17
