Amit Kumar vs Shiv Kumar and Others

Ram Chand Gupta, J.

C.M. No. 4331-CII of 2011

Application is allowed subject to all just exceptions.

Civil Revision No. 1013 of 2011

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 7.8.2010, Annexure P1, passed by learned Civil Judge, Senior Division, Narnaul, and impugned judgment dated 12.1.2011, Annxure P2, passed by learned Additional District Judge, Narnaul, vide which objections of Petitioner-JD have been rejected.

I have heard learned Counsel for the Petitioner and have gone through the whole record carefully including the impugned orders passed by learned Courts below.

Facts relevant for the decision of present revision petition are that in civil suit filed by predecessor-in-interest of Respondent-decree-holders Ramu Ram for permanent injunction, compromise was effected between the parties and as per compromise, the suit was decreed. The decree-sheet is Annexure P4 and the compromise is Annexure P3.

Execution petition was filed by Respondent-decree holders stating that present Petitioner and other judgment debtors have violated the judgment and decree. In the execution petition, objections were filed by the other judgment-debtors, namely, Smt. Indu Devi, mother of present Petitioner and Amit Kumar, brother of present Petitioner. The said objections were dismissed by learned Executing Court. Appeal filed against the said objections was also dismissed by learned Additional District Judge, Narnaul. Against dismissal of appeal, revision petition was filed before this Court, which was also dismissed. It has been observed by learned trial Court in the impugned order that on the same facts, the present objection petition has been filed by the present Petitioner. Hence, the objection has been dismissed by learned trial Court vide impugned order, Annexure P1, by observing as under:

Amit Kumar JD has moved an objection stating there in that the objector did not violate the decree dated 12.10.1982 because he constructed the projection upon the window about 15 feet (1-1/2,2) height from the ground level hence objection is liable to be sustainable as per law. Decree is required to be deemed as satisfied, in the interest of justice. On the other hand learned Counsel for the DH refuted the said contention and argued that in the present execution similar objection, has been raised by Indu Devi, one of the JD which has already been dismissed by the court on 15.4.2009 and the appeal of the same was preferred by the JD which was also dismissed by the court of Sh.D.S. Sheoran, learned ASJ Narnaul vide order dated 19.1.2010. Heard, accordingly to judgment dated 12.10.1982 no any kind of projection is required to be constructed upon the window. JD Indu Devi has already filed the similar objection, which was dismissed by the present Court on 15.4.2009. Indu Devi preferred an appeal before the court of Shri D.S. Sheoran, learned ASJ Narnaul which was also dismissed by virtue of judgment dated 19.1.2010, it is also held that DH has right to remove the construction of projection upon the window. Indu Devi is the mother of the present objector. No other objection has been raised in the application of the Petitioner. Hence, the objection raised by the JD Amit Kumar is hereby dismissed and J Ds are directed to remove the construction raised on the disputed portion marked as ABCD in the site plan annexed with the decree dated 12.10.1982 at his own costs. Now to come up on 16.9.2010 for compliance.

Appeal filed against the same was also dismissed by learned Additional District Judge, Narnaul, vide impugned judgment dated 12.1.2011.

It has been contended by learned Counsel for the Petitioner that he was not a party to the earlier objection petition and that he is having right to construct the projection upon the window as per the compromise.

However, perusal of the compromise and the impugned decree shows that the same is silent on the point as to whether the Petitioner was permitted to raise projection over the window. However, in the previous objection petition, it was held that decree-holder was having right to remove the construction of projection upon the window as has been held by learned trial Court in the impugned order, Annexure P1. The said order has become final upto this Court. Plea of present Petitioner that he was not a party to the earlier objection petition and hence the said order is not binding upon him is without any merit. Earlier objection petition was filed by mother and brother of present Petitioner. There is no conflict of interest between the present Petitioner and his brother and mother. All the three are claiming through previous judgment debtors Kalyan Dass, who entered into compromise.

Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned courts below in passing the impugned orders and that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and Ors. 2004 (1) RCR 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby.

Hence, the present revision petition is hereby dismissed being devoid of any merit.