Mansha Ram (Since Deceased) ... vs Jagdish Chand
2023 Latest Caselaw 5745 HP

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CMPMO No. 535 of 2018.

Decided on : 12th May, 2023.

.

Mansha Ram (since deceased) through his legal heirs

...Petitioners.

                                         Versus

    Jagdish Chand                                                       ....Respondent.





    Coram:

The Hon'ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?1 No.

For the Petitioners: Mr. Ashwani Sharma, Senior Advocate, with Mr. Ishan Sharma, Advocate.

For the Respondent: Mr. G.D. Verma, Senior Advocate,

with Mr. Hitesh Thakur, Advocate.

Satyen Vaidya, Judge (Oral).

By way of instant petition, petitioners have

assailed order dated 26.11.2018 passed by learned Civil

Judge, Court No.2, Ghumarwin, District Bilaspur, H.P. in

Execution Petition No. 7-10-2018.

2. Learned Additional District Judge, Ghumarwin, had

passed a decree in favour of respondent herein (for short

"decree holder") in the following terms:-

Whether reporters of the local papers may be allowed to see the judgment?

...2...

"This appeal coming on for hearing on the 27 th April,

.

2013, before me (P.P. Ranta, Additional District

Judge, Ghumarwin, District Bilaspur, H.P. in the presence of Shri K.S. Dhatwalia, Advocate for

appellant and of Shri L.R. Verma, Advocate for respondent, it is hereby declared that Appeal filed by the appellant stands allowed and accepted with costs. The judgment and decree passed by the trial

Court, dated 27.04.2012, stand set aside. Resultantly, the suit of the plaintiff is decreed for the relief of vacant possession of Khasra No. 35/1, land

measuring 0.6 bighas by demolishing the structure and Khasra No.35/2, measuring 1.8 bighas,

comprised in Khata/Khatoni No. 8 min/8min, total land measuring 1.14 bighas, situated in village Basandwari, P.O. Matla, Pargana Gehtwin, Tehsil

Jhandutta, District Bilaspur, H.P. as per report of the Local Commissioner in previous suit No. 74/1 of 2005 as referred in judgment, Ex.PW1/C."

3. Decree holders filed aforesaid execution petition

and the executing Court issued warrant of possession

directing the same to the Collector, Sub Division Jhandutta,

Bilaspur, for execution on 03.05.2018. The Collector returned

the warrant of possession to the executing Court on

25.07.2018 with a report that the warrant was executed in

respect of Khasra No.35/2, measuring 1.8 bighas, however,

khasra No.35/1, measuring 0.6 bighas was not found on spot

to have any constructed house or Sehan as per tatima

...3...

Ex.PW1/C and thus on fresh demarcation, khasra No.35/1 was

.

found to be vacant, qua which judgment debtors were ready

to handover the possession to the decree holder. He further

reported that decree holder though participated on spot

during the process of execution of decree but later had left

the spot without recording his satisfaction.

4. Thereafter the judgement debtors preferred an

application before the executing Court with a prayer that the

execution petition be dismissed as having been fully satisfied.

Such application was moved on the basis of the report

submitted by the Collector to the Executing Court. The

application was opposed by the decree holder. Learned

Executing Court dismissed the application vide impugned

order dated 26.11.2018 and directed the warrant of

possession to be issued again by holding that the decree had

not been executed.

5. Learned Senior Counsel for the petitioner has

submitted that the impugned order cannot sustain as the

learned executing Court had reopened the execution process

after the decree had fully been satisfied. He has further

...4...

submitted that there was no illegality committed by the

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Collector in re-demarcating khasra No. 35/1 as he was not in

possession of complete documents.

6. On the other hand, learned Senior Counsel for the

decree holder/respondent has opposed the prayer of the

petitioner firstly on the ground that this Court in exercise of

jurisdiction under Article 227 of the Constitution of India will

not sit as a court of appeal to re-appreciate or reweigh the

material considered by the executing court. The jurisdiction

of this Court is only confined to supervise so as to see

whether there is any jurisdictional error committed by the

Court below. He has further submitted that there is no

ambiguity in the decree and it has to be executed as it is.

Since, the decree was not executed in accordance with law,

there is no illegality in the order impugned by way of instant

petition.

7. I have heard learned counsel for the parties and

have also gone through the record carefully.

8. As noticed above, there is a clear reference in the

decree passed by learned Additional District Judge,

...5...

Ghumarwin that the possession of the land mentioned therein

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was to be delivered by the judgment debtors to the decree

holder as per the report of the local commissioner in previous

suit No.74/1 of 2005 as referred in judgment, Ex.PW1/C.

Admittedly, the decree so passed by learned Additional

District Judge, Ghumarwin has attained finality.

9. It is trite law that the decree once passed by the

court of competent jurisdiction is to be executed by executing

Court as it is. Nothing can be added or subtracted from such

decree. In the instant case, the decree passed by learned

Additional District Judge, Ghumarwin, on the face of it does

not reveal any ambiguity.

10. In the circumstances as detailed above, when the

warrant of possession was issued to the Collector, it was

incumbent upon such authority to execute the decree strictly

in its terms. It was none of his business to re-demarcate the

land or get it re-demarcated from his subordinate officers as

the decree itself was passed on the basis of demarcation

earlier conducted in a previous suit. The judgment debtors

having failed to challenge the decree are bound to abide by

...6...

such decree and the decree is required to be executed as it is.

.

In the demarcation held in previous suit, which has been

made basis for the decree in question, Khasra No.35/1

measuring 0.6 bighas has been found to be in possession of

judgment debtors with some construction thereon with a

court yard. To say now that the land comprised in Khasra

No.35/1 is vacant will be re-writing a decree which is

impermissible in law. Reference can gainfully be made to

following excerpts from judgment passed by the Hon'ble

Supreme Court in Satyawati vs. Rajinder Singh &

Another, reported in (2013)9 SCC 491:-

"9. Looking to the facts of the case and upon

hearing the learned counsel, we are of the view that the order passed by the Executing Court dated

16 th March, 2009, which has been confirmed by the High Court is not correct for the reason that the

Executing Court ought not to have considered other factors and facts which were not forming part of the judgment and the decree passed in favour of the appellant- plaintiff. Once the decree was made in favour of the appellant-plaintiff, in pursuance of the judgment dated 19 th January, 1996 delivered by the District Judge Faridabad, in our opinion, the Executing Court should not have looked into other reports which had been submitted to it afterwards.

...7...

10. Upon perusal of the reports, we

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find that the local commissioner's report clearly

describes the land which admeasures 80 sq. yard and which is forming part of Khasra No. 95/24/2

and the report given by the local commissioner also gives details of the land in question by way of a sketch. In our opinion, the Executing Court ought to have looked at the sketch which was prepared by

the local commissioner and which was accepted as a correct sketch by the Appellate Court while delivering the judgment dated 19th January, 1996,

which has become final.

11. In our opinion, the view expressed by the

Executing Court and confirmed by the High Court is not correct and therefore, we allow this appeal and quash and set aside the impugned order of the

High Court passed in C.R. No. 2047 of 2010 dated 25 th May, 2011, confirming the order passed by the Executing Court dated 16 th March, 2009. We

direct the Executing Court to do the needful for

execution of the decree by taking into account the local commissioner's report and sketch prepared by him dated 17 th September, 1989.

12. It is really agonizing to learn that the appellant- decree holder is unable to enjoy the fruits of her success even today i.e. in 2013 though the appellant- plaintiff had finally succeeded in January, 1996. As stated hereinabove, the Privy Council in the case of The General Manager of the Raj Durbhnga under the Court of Wards vs. Maharajah Coomar Ramaput Sing (1871-72)14 MIA 605 had observed that the difficulties of a litigant in

...8...

India begin when he has obtained a Decree. Even in

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1925, while quoting the aforestated judgment of

the Privy Council in the case of Kuer Jang Bahadur vs. Bank of Upper India Ltd., Lucknow [AIR 1925

Oudh 448], the Court was constrained to observe that:-

"Courts in India have to be careful to see that process of the Court and law of

procedure are not abused by the judgment- debtors in such a way as to make Courts of law instrumental in defrauding creditors,

who have obtained decrees in accordance with their rights."

11. Viewed from another angle, the impugned order

has been passed by the executing Court in exercise of lawful

jurisdiction vested in it. No error of jurisdiction has been

pointed out. In this view of the matter also, the impugned

order requires no inference.

12. In result, petition fails and the same is dismissed.

Consequently, the impugned order dated 26.11.2018 passed

by learned Civil Judge, Court No.2, Ghumarwin, District

Bilaspur, H.P. in Execution Petition No. 7.-10-2018 is affirmed.

Since, the decree was passed in the year 2013 and has still

remained unexecuted for one or the other reason, it is

expected from the learned executing Court that the matter

...9...

will be expedited. With these observations, the instant

.

petition is disposed of. The parties are directed to appear

before the learned executing Court on 24th May, 2023.

Pending applications, if any, also stand disposed of. Records

be sent back forthwith.

12th May, 2023.

              (jai)
                   r            to     (Satyen Vaidya)
                                            Judge