Lal Singh & Others vs Gauri Dutt & Others
2023 Latest Caselaw 17571 HP

         IN THE HIGH COURT OF HIMACHAL PRADESH AT
                          SHIMLA

                                                      CMPMO No.598 of 2023
                                                      Decided on: 06.11.2023




                                                                       .
    Lal Singh & others                                         ...Petitioners





                                          Versus





    Gauri Dutt & others                                                ...Respondents

    Coram
    Hon'ble Mr. Justice Ajay Mohan Goel, Judge
    1





     Whether approved for reporting? Yes
    For the petitioners: Mr. G.R. Palsra, Advocate.

    For the respondents: None.


    Ajay Mohan Goel, Judge (Oral)

By way of this petition filed under Section 227 of the

Constitution of India, the petitioner has assailed order dated

08.09.2023, passed by the Court of learned Civil Judge,

Karsog, District Mandi, H.P., in terms whereof an application

filed under Order 26, Rule 9 of the Civil Procedure Code by the

present petitioners has been dismissed.

2. Brief facts necessary for the adjudication of the

present petition are that the respondents have in their favour a

decree of permanent prohibitory injunction, for the execution

whereof the respondents/ Decree Holders filed an Execution

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

Petition. In the course of adjudication of the said Execution

Petition, the petitioners herein filed an application under Order

26, Rule 9 of the Civil Procedure Code, praying for demarcation

.

of the suit land. It was averred in the application that previously

the Judgment Debtors were in possession of the suit land as

tenants and they have became owners thereof by the operation

of law. It was further averred in the application that there was

nothing on record as to when the possession of the land was

handed over to the non-applicants in terms of the judgment and

all these facts can be decided only by appointment of a

revenue official who be directed to visit the spot and give his

findings regarding possession on the same. The application

was contested by the Decree Holders, inter alia, on the ground

that it stood held in the first appeal, i.e. Civil Appeal No.41 of

2013, decided on 05.08.2014 by the Court of learned District

Judge that the Decree Holders were in possession of the suit

land and these findings were affirmed by the High Court in RSA

No.516 of 2014 and therefore, no fresh inquiry was warranted

on the issue of possession of the suit land.

3. Learned Executing Court in terms of order dated

08.09.2023 has been pleased to dismiss the application by

holding that as the Decree Holders were held to be owners in

possession of the suit land upto to the High Court, therefore,

.

appointment of Local Commissioner under Order 26, Rule 9 of

the Civil Procedure Code to determine the factum of

possession could not be ordered.

4. Feeling aggrieved, the Judgment Debtors have filed

this petition.

5. Having heard learned counsel for the petitioners

and having carefully gone through the order impugned as well

as other documents appended with the petition, this Court finds

no infirmity with the order passed by the learned Executing

Court.

6. When the factum of the suit land being owned and

possessed by the Decree Holders has attained finality and seal

of approval has been affixed by this Court on the findings

returned to this effect by the learned First Appellate Court, in

the garb of application filed under Order 26, Rule 9 of the Civil

Procedure Code, the petitioners could not have been permitted

to lay down foundation, to assail the findings returned in the

main litigation.

7. The purpose of Order 26, Rule 9 of the Civil

Procedure Code is not to create evidence in favour of a party,

.

but the purpose is to elucidate any matter in dispute if the same

can be elucidated by appointment of a Local Commissioner.

8. In the present case, as the issue of the suit land

being in ownership and possession of the Decree Holders had

attained finality and as the petitioners have suffered a decree of

permanent prohibitory injunction, by way of an application filed

under Order 26, Rule 9 of the Civil Procedure Code, attempt

could not have been permitted to be made by them to indirectly

lay challenge to the findings returned qua possession of the suit

land in the main litigation. This is what has been done by the

learned Court below while dismissing the application filed by

the petitioners for appointment of Local Commissioner and

rightly so.

9. In view of the above observation, as this Court does

not finds any merit in the present petition and further as the

Court does not finds any perversity with the order passed by

the learned Executing Court under challenge, this petition is

dismissed, so also the pending miscellaneous applications, if

any.

(Ajay Mohan Goel) Judge

.

    November 06, 2023
       (Rishi)





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