Jharkhand High Court
Upendra Kumar Singh vs Satya Narayan Prasad Chourasia on 3 March, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
C.M.P. No. 187 of 2024
----
Upendra Kumar Singh, aged about 63 years, son of Late Saheb
Singh, resident of Railway Institute Road, Purana Bazar, Dhanbad,
PO - Dhanbad, PS - Bank More, District - Dhanbad
.... Petitioner
-- Versus --
Satya Narayan Prasad Chourasia, son of Late Raghu Ram Barai,
resident of Temple Road, Purana Bazar, Dhanbad, PO - Dhanbad, PS
- Dhansar, District - Dhanbad .... Opposite Parties
----
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
---
For the Petitioner :- Mr. Indrajit Sinha, Advocate
:- Ms. Prerna Jhunjhunwala, Advocate
:- Ms. Arushi Agarwal, Advocate
For the O.P. :- Mr. Pratyush, Advocate
----
03/03.03.2025 Heard learned counsel appearing for the petitioner and
learned counsel appearing for the sole opposite party.
2. This petition has been filed under Article 227 of the
Constitution of India for quashing of the order dated 17.02.2024
passed in Execution Case No.664 of 2014 by learned Civil Judge
(Senior Division)-IX, Dhanbad whereby the petition dated
10.10.2023 filed by the petitioner/judgment debtor for appointment
of Pleader Commissioner under Order 26 Rule 10(A) of Code of Civil
Procedure has been rejected.
3. Learned counsel appearing for the petitioner submits that
the respondent herein instituted a suit being Title Suit No.119 of
2001 before learned Sub-Judge, 1st Dhanbad for declaration of right,
title and interest and recovery of possession in respect to the land
mentioned in Schedule B and further for restraining the
petitioner/judgment debtor from interfering with the possession of
plaintiff in Schedule B. He further submits that Schedule B property
includes 2 decimals land in Plot No.4305 and 2 decimals land in Plot
No.4306, Mouza - 51, Dhanbad. He then submits that by judgment
dated 30.08.2013, the learned Court has decreed the suit on
contest in favour of the plaintiff/respondent. He submits that
aggrieved to that the petitioner herein preferred Civil Appeal No.97
of 2013 before learned District Judge-XIV, Dhanbad. The learned
First Appellate Court vide judgment dated 17.09.2018 dismissed the
appeal preferred by the petitioner and affirmed the order of the
learned trial court, thereafter, the petitioner herein further preferred
Second Appeal being S.A. No.534 of 2018 before this Court,
however the said was further dismissed by order dated 14.05.2019
and against that the petitioner has moved before Hon'ble the
Supreme Court in Special Leave to Appeal (C) No.4138-4139/2020
which was dismissed by order dated 17.02.2020 passed by Hon'ble
Apex Court. He submits that for the execution of the decree the
Execution Case No.664 of 2014 was filed by the decree holder and
in that case the petition under Order 26 Rule 10(A) of the CPC was
filed for appointment of the Pleader Commissioner for holding the
scientific investigation with regard to iron bridge removal which has
been rejected. He submits that on the ground of easementry rights,
it has been tried to make out a case by the decree holder that the
said iron bridge is coming in the way on the decretal property and in
view of that only the learned Court has been pleased to reject the
same. He submits that once that dispute is there rightly the prayer
was made and in view of that the order of the learned executing
court may kindly be set aside.
4. On the other hand, learned counsel appearing for the sole
opposite party submits that the petitioner has already lost up to the
Hon'ble Supreme Court and during the pendency of the execution
case two earlier petitions have been filed and earlier two petitions
was there with regard to stay of execution and for maintenance of
status quo which has been rejected by the learned executing Court
by order dated 22.12.2023. He submits that this is the third petition
before the learned Court and the learned Court appreciating all the
facts and further considering that the petitioner has given an
undertaking before the Nazir by way of signing the document that
within two days the said will be removed and in spite of that it has
not been done and in view of that the learned Court has rightly
passed the order.
5. It is an admitted position that the petitioner herein
happened to be the judgment debtor has lost the case up to the
Hon'ble Supreme Court which has been noted in the argument of
learned counsel appearing for the petitioner. Before the executing
court earlier two petitions filed by the petitioner have been rejected
by the learned executing order by order dated 22.12.2023. Nazir
report is on the record wherein it has been disclosed that on the
identification of the decree holder, the Nazir told the judgment
debtor to vacate the decretal premises and hand over the same to
the decree holder, so that the order of the Court shall be complied
and so far the structure in question is concerned, two days' time
was prayed for removing the same on the ground that for
arrangements of experts for removing the same is required and the
said undertaking was signed by the petitioner/judgment debtor and
decree holder in the presence of Nazir. Considering that the learned
Court has found that only to delay the proceeding in handing over
the decretal amount, the said petition has been filed.
6. Under Order 26 Rule 10(A) of CPC, the Court has discretion
to order local investigation or not. The object of local investigation
is not so much to collect the evidence which can be taken in Court
but to obtain evidence which from its peculiar nature can only be
had at the spot. There may be cases where the object of the issue
of Commission itself will be lost by ordering notice before passing
the order for the issue of Commission. It is further not in dispute at
any stage the said petition can be filed and it is for the court to
consider whether pleader commissioner is required to be appointed
or not.
7. The petitioner has already given an undertaking in front of
the Nazir which was signed by the petitioner and the judgment
debtor to remove the said structure on the ground of technical
arrangement for removing the same and in view of that it is an
admitted position that the said structure was required to be
removed.
8. In the case of Committee of Management, Anjuman
Intezamia Masajid, Varanasi (Gyanvapi Mosque Committee)
v. Rakhi Singh and Others reported in (2024) 3 SCC 336 the
Hon'ble Supreme Court at paragraph No.12.5, it has been held as
under :-
"12.5 While an order for conducting a scientific
investigation or survey under Order 26 Rule 9 may
be passed at any stage, ordinarily a scientific
survey ought not to be ordered until the court is
cognizant of the issue that would arise in the suit."
9. In the case in hand, the petitioner has already lost up to the
Hon'ble Supreme Court and two petitions filed earlier has been
rejected by the learned Court and thereafter third petition has been
filed. When the undertaking was already given to remove the said
structure there is no ground to interfere with the impugned order,
as such this petition is dismissed.
(Sanjay Kumar Dwivedi, J.)
Sangam/
A.F.R.
