Harnek Singh And Others vs Hardial Singh And Others
2023 Latest Caselaw 13879 P&H

                                                             Neutral Citation No:=2023:PHHC:110125




C.R.No.2099 of 2019 (O&M)              -1-             2023:PHHC:110125

        IN THE HIGH COURT OF PUNJAB AND HARYANA
                     AT CHANDIGARH

                                                C.R.No.2099 of 2019 (O&M)
                                                 Date of Order: 23.08.2023

Harnek Singh and others
                                                                        .Petitioners
                                    Versus

Hardial Singh (deceased) through LRs and others
                                                                     ..Respondents

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL

Present: Mr. Namit Gautam, Advocate for the petitioners.

None for the respondents.

ANIL KSHETARPAL, J

1. Despite service of notice of the revision petition, the

respondents have not entered appearance.

2. This is once again an unfortunate case where the rules of

procedure are being given precedence over substantive justice.

3. In order to comprehend the dispute involved in the present case,

some relevant facts, in brief, are required to be noticed.

4. In a civil suit, the judgment and decree was passed which was

modified to certain extent by the First Appellate Court on 13.08.2004, on the

basis of settlement between the parties. In order to execute the decree, the

execution petition was filed in the First Appellate Court. Vide order dated

26.05.2017, the First Appellate Court sent the matter back to the court of

Additional Civil Judge (Sr. Division), Samrala, with direction to appoint a

Local Commissioner for getting the decree complied with.. The trial court

was also directed to submit the compliance report. The court of the first

instance sent the entire case file back to the First Appellate Court while

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informing that there is a dispute between the parties with regard to location

of the old drainage Mark-'A' and therefore, the wall cannot be constructed

and there is an apprehension of quarrel at the spot. Thereafter, the First

Appellate Court proceeded with the execution petition which is evident from

the orders dated 16.12.2017 and 21.09.2018. An application for providing

the police help was filed by the Decree Holder. The parties were permitted

to lead evidence in support of their claims.

5. On 07.12.2018, the application for providing the police help to

the Local Commissioner to get the wall constructed was allowed. However,

on 19.01.2019, the First Appellate Court directed the decree holder to file a

fresh execution petition before the court of first instance while refusing the

permission to remit the file back to the Executing Court.

6. At the very first instance, the execution petition filed before the

First Appellate Court was not maintainable because the execution petition is

required to be filed in the court of first instance even if there is a

modification of decree by the First Appellate Court. The doctrine of merger

is applicable, therefore, the decree passed by the trial court will merge into

the decree passed by the First Appellate Court.

7. Secondly, the First Appellate Court erred in proceeding with the

matter. When the substantial progress has been made in the matter, the First

Appellate Court has directed the decree holder to file the execution petition

before the court of first instance. The First Appellate Court should have

atleast remitted the file of the execution petition to the court of first instance

to proceed further. The de-novo proceeding in the court of first instance

would result in further delay of the matter.

8. Keeping in view the aforesaid facts, the impugned order passed

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C.R.No.2099 of 2019 (O&M) -3- 2023:PHHC:110125

by the First Appellate Court on 19.01.2019 is set aside to the extent whereby

the request of decree holder to remit the file of the execution petition back to

the Executing Court has been declined. The First Appellate Court is

requested to transmit the file of the execution petition forthwith to the

Executing Court and the Executing Court is requested to proceed with the

execution petition from the stage the matter was pending before the First

Appellate Court.

9. Disposed of accordingly.

10. All the pending miscellaneous applications, if any, are also

disposed of.

August 23, 2023                                       (ANIL KSHETARPAL)
nt                                                          JUDGE


Whether speaking/reasoned                 :YES/NO
Whether reportable                        :YES/NO




                                                           Neutral Citation No:=2023:PHHC:110125

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