Shyam Sundar Mittal vs Anup Kumar Mittal
2024 Latest Caselaw 10261 Jhar

Jharkhand High Court

Shyam Sundar Mittal vs Anup Kumar Mittal on 23 October, 2024

Author: Subhash Chand

Bench: Subhash Chand

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
             C.M.P. No. 195 of 2023

Shyam Sundar Mittal, aged about 63 years, son of late Jagdish Prasad Agrawal,
resident of Simdega Main Road, Mittal X-Ray Gali, P.O. & P.S. Simdega,
District Simdega (Jharkhand), at present residing at Krishna Vihar Colony,
House No. 196, 1st Floor, Raigarh, P.O. & P.S. Raigarh, District Raigarh
(Chhattisgarh).                       .....          .....Defendant No. 12/
Judgement Debtor in Execution Case No. 1/2020/ Decree Holder in
Execution Case No. 4/2019/ Petitioner
                                   Versus
1. Anup Kumar Mittal, son of Late Jagdish Prasad, resident of Simdega Main
Road, Mittal X-Ray Gali, P.O. & P.S. Simdega, District Simdega (Jharkhand).
                                            .... .... Plaintiff/Decree Holder
in Execution Case No. 01/2020/ Judgement Debtor in Execution Case No.
04/2019/Respondent
2. Smt. Savitri Devi, widow of Late Jagdish Prasad Mittal
3. Radhey Shyam Mittal, son of Late Jagdish Prasad Mittal
4. Pawan Kumar Mittal, Late Jagdish Prasad Mittal
5. Rajendra Prasad Mittal, Late Jagdish Prasad Mittal
      Sl. No. 2 to 5 all are resident of Main Road, Old Mittal X-ray Gali,
Simdega, P.O. & P.S. Simdega, District - Simdega.
6. Smt. Krishna Devi, daughter of Late Jagdish Prasad Mittal and wife of
Mahabir Prasad, at present residing at Main Road, Old Mittal X-ray Gali,
Simdega, P.O. & P.S. Simdega District Simdega,
7. Kamlesh Devi, daughter of Late Jagdish Prasad Mittal and widow of Late
Kirorimal Agrawal, resident of Rourkela, P.O. Civil Township Rourkela, P.S.
Raghunath Pali, District Sundargarh, S-446, Civil Township, Rourkela 76900
8. Miss. Usha Bai, daughter of Late Jagdish Prasad Mittal, residing at Main
Road, Old Mittal X-ray Gali, Simdega, P.O. & P.S. Simdega, District Simdega.
9. Smt. Anita Devi, daughter of Late Jagdish Prasad Mittal, wife of Vijay
Kumar Agrawal, resident of Singrauli (M.P.), P.O. & P.S. -Vindhyanagar, C/o
My Choice Collection Shop No. 1, Shivaji Complex, P.Ο. Vindhyanagar
Singrauli (M.P.) PIN-486885, District - Sidhi.
10. Smt. Renu Devi, daughter of Late Jagdish Prasad Mittal, wife of Binod
Agrawal, residing at D Cabin Bandamunda, P.O. & P.S. Bandamunda, District
- Sundargarh (Orissa), C/o Binod Kumar Agarwal, Neeraj Steels, D Cabin,
Near College Road, Bandamunda.
11. Smt. Bobby Devi, daughter of Late Jagdish Prasad Mittal, wife of Arbind
Agrawal, residing at Ramgarh, P.O. & P.S. Ramgarh, District Ramgarh, C/o
Nanuram Gariyan Products, Gola Road, Ramgarh.
12. Smt. Reshma Devi, wife of Shri Rajendra Prasad Mittal, residing at Main
Road, Old Mittal X-ray Gali, Simdega, P.O. & P.S. Simdega, District - Simdega.
                                .... .... Defendants/ Judgment Debtors in
Execution Case No.1/2020 & Execution Case No.4/ 2019 Proforma
Respondents
                                    ------

CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND

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      For the Petitioner                : Mr. Sudhir Kumar Sharma, Advocate
      For the Respondents               : Mr. Sandeep Verma, Advocate
                                          Mr. Sumit Kumar, Advocate
                                       --------
 Order No.10 /Dated: 23rd October, 2024

1. Learned counsel for the petitioner and learned counsel for the respondents are present.

2. The instant Civil Miscellaneous Petition has been preferred against the order dated 10.02.2023 passed by the learned Civil Judge (Sr. Division)-I, Simdega in Execution Case No.01 of 2020 arising out of Misc. Civil Application No.03 of 2023 (Annexure-5), whereby the learned Civil Judge (Sr. Division)-I, Simdega has disposed of the application without any adjudication filed by the defendant No.12-judgment debtor, who is the petitioner herein.

3. Learned counsel for the petitioner has submitted that the Partition Suit No.07 of 2010 was instituted by Anup Kumar Mittal against Smt. Savitri Devi & Ors., in which, the defendant No.12, Shyam Sundar Mittal was also party, who is the petitioner herein. Copy of the plaint is Annexure-1 of the instant C.M.P. 3.1 It is submitted by the learned counsel for the petitioner that in partition suit, the final decree was passed, which is Annexure-3 of this Civil Miscellaneous Petition. This final decree was also passed on the basis of the compromise arrived between the parties. The compromise petition is also annexed, which is at page No.118 of this Civil Miscellaneous Petition. 3.2 Thereafter, Execution Case No.4 of 2019 was filed on behalf of the decree holder-petitioner Shyam Sundar Mittal to get the possession of his share on the basis of the final decree separately, the copy of Execution Case No.04 of 2019 is Annexure-4 of this C.M.P. The Execution Case No.04 of 2019 was decided on 19.12.2022 and the separate symbolic possession was delivered by the Court on the property of which he was very much in possession even prior to instituting the execution proceeding.

3.3 It is further submitted by the learned counsel for the petitioner that subsequently Anup Kumar Mittal, the original decree holder and plaintiff of the Partition Suit No.07 of 2010 also filed the Execution Case No.01 of 2020 of the final decree, which was passed in view of the settlement between the parties. The order dated 24.09.2021 passed in Execution Case No.01 of 2020 is at page No.143. The execution Case No.01 of 2020 was initiated by the decree holder Anup Kumar Mittal on 02.09.2020 and, in this very Execution Case No.01 of 2020, for the first time, the objection was filed on behalf of the

judgment debtor Shyam Sundar Mittal, the petitioner herein, copy of the same is at page No.181 of this Civil Miscellaneous Petition and these objections were decided by the Executing Court vide order dated 24.09.2021. Thereafter, the objections were raised on behalf of the petitioner-judgment debtor Shyam Sundar Mittal, which is at page No.193 of this C.M.P. and these objections were decided vide order dated 10.02.2023, which is at page No.178 of this Civil Miscellaneous Petition and this very order dated 10.02.2023 has been challenged by the petitioner.

4. This is admitted fact that in Partition Suit No.07 of 2010, final decree was passed on the basis of compromise, which is Annexure-3 of this Civil Miscellaneous Petition. From the very perusal of this final decree, it is found that the decree-holder Anup Kumar Mittal was given share to 'A' while the judgment debtor-the petitioner herein was given the property, which is shown in Schedule 'Jha' of this final decree. The compromise is also made part of the compromise decree, which is at page Nos.118 to 123 of this C.M.P. 4.1 Admittedly, Shyam Sundar Mittal, the petitioner herein initiated the execution proceeding in Execution Case No.04 of 2019, and he sought the separate possession on the very property which was scheduled to be given to him in the final decree shown in Schedule 'झ'. In Execution Case No.04 of 2019, no objections were filed by any of the decree holder or the rest of the judgment debtor and this Execution Case No.04 of 2019 was finally decided vide order dated 19.12.2022, which is at page No.142 of this Civil Miscellaneous Petition. It is mentioned in this order that in view of the report of Nazir, the suit land measuring 15 decimals in favour of the decree holder, Shyam Sundar Mittal, who is already in his possession, the same has been measured by Md. Yusuf, Pleader Commissioner and the decree was satisfied with the measurement conducted by the Pleader Commissioner. As such, in Execution Case No.04 of 2019, the final decree, which was passed in favour of the petitioner Shyam Sundar Mittal was satisfied in full and final vide order dated 19.12.2022.

4.2 It is pertinent to mention herein, admittedly the symbolic possession was given to the petitioner Shyam Sundar Mittal since he was already in possession of the very share, which was given to him in the final decree.

5. The decree holder Anup Kumar Mittal also instituted the execution

proceeding bearing Execution Case No.01 of 2020 against objection was filed on behalf of the petitioner-judgment debtor Shyam Sundar Mittal, which was decided on 24.09.2021 wherein it was held that the objection was not maintainable at that stage and the grievance raised by Shyam Sundar Mittal could be decided along with the execution proceeding in course of the execution.

5.1 The order dated 24.09.2021 was never challenged by the petitioner Shyam Sundar Mittal before any higher Forum. Thereafter, on behalf of the petitioner Shyam Sundar Mittal, the objection was moved in Execution Case No.01 of 2020, which is at page No.193 and these objections were decided by the executing court vide order dated 10.02.2023.

6. Prior to see the legality and propriety of the impugned order dated 10.02.2023, it would be pertinent to look into the Nazir report, which is at page No.203 of this Civil Miscellaneous Petition. From the very perusal of the same, it is found that the judgment debtor Shyam Sundar Mittal did not appear at the spot when the Nazir went for measurement of the property to be given to the decree holder; but the son-in-law and two daughters of the judgment debtor Shyam Sundar Mittal appeared therein. The son-in-law and two daughters of Shyam Sundar Mittal admitted that the boundary wall, which was erected by the judgment debtor that was on the very land of decree holder and they were ready to remove the very boundary wall and, for the same, 14 days' time was also given to the judgment debtor prior to deliver the possession to the decree holder on his decreed share. It was also agreed prior to demolish the boundary wall, the judgment debtor will also erect another boundary wall on their share. As such, after marking the share of decree holder, in view of the final decree, the possession was delivered to the decree holder. The videography of the same was also prepared.

6.1 Learned counsel for the petitioner has submitted that he never conceded that the boundary wall was erected on the very land of decree holder, which was to be given to him in execution of the final decree. The admission was of his son-in-law and two daughters, not of him.

6.2 Admittedly, against this Nazir report dated 21.01.2023, the objections were never filed on behalf of the petitioner. The learned executing court while passing the impugned order dated 10.02.2023 relying upon the

admission being made on behalf of the judgment debtor i.e. his son-in-law and two daughters that the boundary wall was erected by Shyam Sundar Mittal on the very land, which had fallen in the share of decree holder, did not take further step for the measurement whether the boundary wall in question was in the very share of the judgment debtor Shyam Sundar Mittal or in the share of decree holder Anup Kumar Mittal. In view of the undertaking being given on behalf by the judgment debtor the boundary wall was not removed within fifteen days, consequently, the executing court got the same demolished and, thereafter, the possession on the very share as per final decree was handed over to the decree holder Anup Kumar Mittal.

7. Therefore, the impugned order passed by the executing court bears no infirmity and needs no interference and this Civil Miscellaneous Petition deserves to be dismissed.

8. Accordingly, this Civil Miscellaneous Appeal is hereby dismissed and the impugned order 10.02.2023 passed by the learned Civil Judge (Sr. Division)-I, Simdega in Execution Case No.01 of 2020 is affirmed.

(Subhash Chand, J.) Madhav/-