Bhulla Ram vs Ram Asri & Ors.

Jyotsna Rewal Dua, J

The petitioner is aggrieved by an order dated 02.02.2013, whereby learned Executing Court dismissed his Execution Petition filed under Order 21, Rules 11 and 32 of the Code of Civil Procedure.

Heard learned counsel and considered the case file. The petitioner is the successor-in-interest of late Smt. Indro Devi-original decree holder.

2(i) Suit was instituted by Smt. Indro Devi in respect of land measuring 20-14 Kanals comprised in Khewat No.151 Khatauni No. 646 Khasra No. 7118/3920 situated in village Basal, Tehsil and District Una. In the aforesaid civil suit, she prayed for decree of declaration that she was in possession of the suit land as a tenant and the defendants be restrained from interfering with her possession or for dispossessing her from the suit land.

2(ii) The suit was decreed on 02.01.1980. Appeal against this judgment and decree instituted by the respondents-judgment debtors was also dismissed on 18.04.1983.

2(iii) During the pendency of the appeal, in consolidation proceedings Killa Nos. 9/18, 9/23, 9/24,18/3 and 18/4 measuring 39-3 Kanals were allotted to the decree holder. She was also conferred proprietory rights of the allotted land vide mutation No.5282. The decree holder was not satisfied with the order of allotment as according to her, the land in her possession had not been allotted to her, which comprised of Killa No. 16/23 and 16/24.

Decree holder’s application assailing the order of allotment was accepted by the concerned Consolidation Authority. Killa Nos. 9/18, 9/23, 9/24,18/3 and 18/4 earlier allotted to her were withdrawn and Khasra No.16/23 and 16/24 were allotted to her, which according to the petitioner corresponded to old Khasra No. 7118/3920.

2(iv) According to the petitioner, in the settlement operations, Khasra No. 16/23 and 16/24 were given new Khasra No. 213, which co-related to old Khasra Nos. 16/23 and 16/24, which in turn were carved out from Khasra No. 7118/3920.

2(v) The objection of the respondents - judgment debtors to the execution petition was that Smt. Indro Devi (petitioner’s predecessor-in-interest) decree holder had no concern with Khasra No. 213. That this khasra number was owned and possessed by the respondents on the spot.

Learned Executing Court dismissed the execution petition vide impugned order primarily on the ground that decree holder had failed to show by leading cogent and clinching evidence on record that the judgment debtors had knowingly and intentionally violated the judgment and decree passed by the Court.

In my considered view, the impugned order did not take into consideration an important facet that it was the case of the petitioner-decree holder that new Khasra No. 213 co-related to old Khasra Nos. 16/23 and 16/24, which in turn were carved out from the suit property bearing Khasra No.7118/3920, and the fact that the respondents-judgment debtors had taken a stand that the petitioner decree holder had no concern with Khasra No.213, which was alleged to be owned and possessed by him. This aspect had material bearing to the fate of the execution petition as interference over Khasra No.213 was alleged by the decree holder. In case, Khasra No.213 was actually carved out from the suit property then in light of the stand taken by the judgment debtors, prima facie interference over the suit land would have been manifest. Whether Khasra No.213 actually co-relates to the suit property has not been discussed in the impugned order. The impugned order suffers from this material error. Accordingly, this petition is accepted. Impugned order passed by the learned Executing Court on 02.02.2013 is set aside and the matter is remanded to the learned Executing Court for a fresh decision of the execution petition, in accordance with law. Parties, alongwith their learned counsel, are directed to appear before the learned Trial Court on 07.08.2024. Pending miscellaneous application(s), if any, shall also stand disposed of.