Ajay Mohan Goel DECISION
Ajay Mohan Goel, J.
1. By way of this petition, petitioner has prayed for the following relief:-
"It is, therefore, most respectfully prayed that this petition may kindly be allowed and the impugned order, dated 2.6.2017 passed by the Ld. Civil Judge (Sr. Div.), Nadaun in Execution Petition No. 4/2016 titled "Kali Dass vs. Shanti Ram" may kindly be quashed and set aside and the Execution Petition may kindly be dismissed, in the interest of justice."
2. Brief facts necessary for adjudication of the petition are that respondent-Kali Dass filed a suit for permanent prohibitory and mandatory injunction against present petitioner, i.e., Civil Suit No. 219/2011 titled as Kali Dass Vs. Shanti Ram. Said suit was decreed by the Court of learned Civil Judge (Sr. Division), Nadaun, District Hamirpur, H.P. vide judgment and decree dated 6.6.2015 in the following terms:-
"In view of my findings on issue No. 1 to 6, supra, the suit filed by the plaintiff is decreed with cost and defendant is restrained from raising any construction or changing the nature of the suit land comprised in Khata No. 9 min, Khatauni No. 15, Khasra No. 296 area measuring 0-00-80 Hectares situated in village Dhamandar, Mouza Saproh, Tehsil Nadaun, District Hamirpur (H.P.) till the same is partitioned by metes and bound. Further, plaintiff is also entitled for a decree of mandatory injunction by way of demolition of the structure as shown in site plan Ext. PW-2/E which is 28 feet in length and 13 feet in width. Site plan Ext. PW-2/E shall form part and parcel of decree. Decree sheet be prepared accordingly. Case file after completion be consigned to record room."
3. Decree holder filed an application for execution of the said decree. Present petitioner preferred objections against the same. Learned Executing Court vide order dated 2.6.2017 disposed of the objections of the present petitioner by dismissing them in the following terms:-
"4. I have heard the submissions of Ld. Counsel for both the parties and perused the record. It is clear from the record that the court has passed Judgment and decree dated 06-06-2015 against the J.D. by which he was directed to demolish the structure as shown in the site plan Ext. PW-2/E which is 20 feet in length and 13 feet in width. It is well establish principle of law that a court executing a decree cannot go behind the decree. If the objections required examination or investigation of the facts executing court cannot entertain such objections. Executing court cannot question correctness or otherwise of the decree.
5. In this case also the J.D. raised objections which have already taken into consideration by the court who pass the decree. The executing court can determine those questions which arise subsequent to the passing of the decree. In this case there is no such new facts have been arisen after the passing of the decree. The objections of the J.D. are regarding the site plan Ext. PW-2/E which is part and parcel of decree dated 06.06.2015. Therefore, this question regarding the validity of site plan Ext. PW-2/E cannot be decided by the executing court. Therefore, I find no any triable issue in the objections of the J.D. Hence, I dismiss the objections without framing the issue and recording the evidence. Hon'ble High Court of Himachal Pradesh in a case Nagesh v. Godouri MANU/HP/0661/2011 : 2011 (2) Shimla Law Cases 183, held that executing court can dismiss the objections without recording the evidence and framing of issues when thee is no triable issue arose from the objections.
6. Thus, keeping in view the reasons assigned above objections of the J.D. are dismissed. Consequently, warrant of possession is issued to the Collector with the directions to demolish the structure shown in the site plan Ext. PW-2/E in accordance with the judgment and decree dated 06.06.2015. The report of the warrant be sent back to this court on or before 18.8.2017."
4. Feeling aggrieved, the petitioner has preferred the present petition.
5. The order passed by learned Executing Court vide which objections filed by present petitioners, has been dismissed, has been primarily assailed before this Court on the ground that it was mandatory for learned Executing Court to have had framed Issues on the objections filed and thereafter the parties should have been directed to lead their witnesses and in the absence of said procedure having been followed by learned Executing Court, the impugned order was not sustainable in law and liable to be quashed and set aside.
6. No other point was argued.
7. On the other hand learned Senior Counsel appearing for the respondent has argued that framing of Issues is not sine-qua-non for deciding objections filed in an execution and it is not as if the Court is obliged to determine each and every question raised in the question merely because the same stand raised for the purpose of objection.
8. I have heard learned counsel for the parties and have also gone through the order under challenge as well as other documents appended with the petition.
9. It is a matter of record that the decree passed in favour of the present respondent has attained finality. Prayer made in the execution petition was for issuance of warrant of possession against the judgment debtor and for demolition of structure as shown in site plan by Local Commissioner Ext. PW-2/E referred to in Column No. 10 of the Execution Petition. A perusal of the objections filed to the said execution petition demonstrate that the correctness of the report of Local Commissioner has been questioned by way of objections and the execution of decree was resisted on the said ground. It is matter of record that Local Commissioner was appointed by learned trial court and after the report of Local Commissioner was proved on record, in accordance with law. Learned trial court passed its judgment relying upon various exhibits placed on record by the parties including the report of the Local Commissioner. The report of Local Commissioner has now merged in the judgment and decree passed by learned trial court. Said judgment and decree has attained finality. The report of Local Commissioner has not been set aside by any Superior Court of law. That being so, it was not incumbent upon the executing Court to have framed Issues on the basis of objections filed by present petitioners. Though it is correct that as per Section 47 of the CPC all questions arising between the parties in the suit in which decree has been passed as also those relating to the execution of the decree in issue are to be determined by the executing court, but whether or not Issues are to be framed while deciding the objections depends upon the nature and tenor of the objections in the facts of the case. In the present case in view of the nature and tenor of the objections it was not incumbent upon the learned executing court to have had framed any Issues. A perusal of the objections demonstrate that the same were probably filed with the intent to delay the execution.
10. Before the executing court is called upon to hold any inquiry upon the objections by framing Issues and by calling upon to lead the evidence, it is incumbent upon the judgment debtor to prima facie demonstrate that the decree is not executable and for that some legal and valid reasons the executing court is required to frame Issues and record evidence and thereafter decide the Issue. (See Sohan Lal Vs. Sadhu Ram, Latest HLJ 2003 (HP) 154)
11. In Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another, MANU/SC/0252/1998 : AIR 1998 Supreme Court 1754, Hon'ble Supreme Court has reiterated that while deciding objections in an execution petition, the adjudication need not necessarily involve a detailed inquiry or collection of evidence and court can make adjudication on admitted facts or even an averment resister. Hon'ble Supreme Court has further held that the Court can direct the parties to adduce the evidence for such determination if the court deems it necessary. This also in my considered view clearly demonstrates that whether or not Issues are to be framed and parties are to be directed to adduce evidence is a judicial call which has to be taken by the executing court and it is not something which can be termed to be mandatory as has been argued by learned counsel for the petitioner.
12. Coming to the facts of this case again, in view of the decree passed by learned court in favour of present respondent and in the nature of objections which were filed to the execution petition, there was no need for the learned executing court for having had framed the Issues and learned executing court was in a position to decide the objections on the basis of the pleadings contained in the objections. This is exactly what has been done by learned executing court and on merit there is no infirmity with the order which has been passed by learned executing court.
In view of the findings returned here-in-above, as there is no merit in the petition, the same is dismissed. Pending miscellaneous applications, if any, also stand disposed of.
© Manupatra Information Solutions Pvt. Ltd.