Uttarakhand High Court
Harmohinder Pal Singh ... vs Rajender Pal Singh on 10 March, 2021
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Civil Revision No.25 of 2021
Harmohinder Pal Singh ....Revisionist/Land lord
Vs.
Rajender Pal Singh ....Opposite Party /Tenant
Advocate : Mr. I.M. Quddusi, Senior Advocate assisted by Pooran Singh Rawat and Ms.
Babita Jalal, Advocates for the revisionist.
Hon'ble Sharad Kumar Sharma, J.
The revision under Section 115 of the Civil Procedure of Code
has been preferred by the revisionist wherein he has put a challenge to an
order of 27.02.2021, which was passed by the court of Vth Additional
District Judge, Dehradun in an Execution Petition No.01 of 2021,
Harmohinder Pal Singh vs. Rajender Pal Singh, by virtue of the order,
which is put to challenge, which is extracted hereunder:-
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2. The executing Court on the receipt of the execution
proceedings, on its transfer had issued notices to the parties including the
judgment debtor.
3. The contention of the learned Senior Counsel for the
revisionist is that in fact, even upon a receipt of proceedings of execution
on its transfer, the executing court was supposed to issue warrants of
possession to the judgment debtor, in the light of the provisions contained
under Order 21 Rule 36 of C.P.C., that means he intended to argue that the
transferee court should have issued warrants of possession under the light
of the provisions of Order 21 Rule 36 of C.P.C., instead of simplicitor
issuance of notice. This argument of learned Senior Counsel for the
revisionist is not acceptable by this Court for the reason that if the
impugned order dated 27.02.2021, itself is taken into consideration, it was
a general issuance of a notice to the parties affected, including that of the
judgment debtor, after the receipt of the execution proceedings on its
transfer, which as per Rule 89-A of General Rule (Civil), which is
mandatory, that the court to which the proceedings have been transferred
are supposed to give an intimation of the receipt of the records, on transfer
in order to enable the parties to appear before the court and contest the
proceedings, it was not the stage where order could be passed of issuing
warrants of possession under Order 21 Rule 36 of C.P.C.
4. At that stage, when initially the court takes cognizance of the
case transferred to it and issued notices under Rule 89-A of General Rule
(Civil) 1957, it was not at that stage, where even executing court at the
very first instance, ever under law was supposed to issue a warrant, as
contemplated under Order 21 Rule 36 of C.P.C., even prior to giving the
parties to the proceedings an intimation of the transfer of the matter, the
order dated 27.02.2021, the manner in which it has been interpreted, in fact
it was not a stage where the executing court on the receipt of records on
transfer, could have invoked Order 21 Rule 36 of the C.P.C. for issuing
warrants of possession, to the judgment debtor at the first instance itself.
The recourse to the said proceedings could always be pressed by the court
and even by the decree holder, that is the revisionist herein only when the
parties to the execution proceedings, after the receipt of notices under Rule
89-A of General Rule (Civil), have put in appearance. In fact, the
revisionist intends by way of a premonition that there ought to have been
an issuance of a warrant under Order 21 Rule 36 of the C.P.C. even on the
first date itself when the court takes cognizance on the transfer of the
matter before it. This is not the spirit envisaged under Rule 89-A. The
recourse to Order 21 Rule 36 of the C.P.C. would be a stage subsequent to
the information being imparted to the parties to the proceedings of the
execution case. Hence, since the impugned order it's a simplicitor issuance
of notice of receipt of the record on transfer, it cannot made as a subject
matter of revision under Section 115 of C.P.C. as it would not fall to be a
case decided.
5. The revision lacks merit and the same is accordingly,
dismissed.
(Sharad Kumar Sharma, J.)
10.03.2021
Arti/
