Mohanlal Gupta vs Radheshyam Gupta

U.C. Maheshwari J.

The petitioner/defendant/judgment debtor, has filed this petition being aggrieved by the order dated 7.7.12 Annex. P/13 and the order dated 25.7.12 Annex. P/14 passed by the II Civil Judge Class-II, Amarpatan District Satna in Execution Case No. 17-A/05 whereby his applications for re-appointment of Commissioner and call the fresh report of the disputed place and the application for calling the earlier Commissioner for his cross-examination in connection of his report respectively, have been dismissed.

The petitioner/judgment debtor in execution proceeding of the impugned decree has filed the objection against the Commissioner''s report of the disputed place submitted by Shri Vishwajeet Kushwaha, the Sub Engineer of Nagar Panchayat Amarpatan and prayed for appointment of some new Commissioner and call the fresh Commissioner report of the disputed place. Simultaneously, an application to call the earlier Commissioner and extend him opportunity of cross-examination in connection of his report, was filed.

On consideration, both the applications were dismissed, on which, the applicant has come with this petition.

It is undisputed fact that the decree under execution has got finality between the parties in the original suit and the same is being executed by the decree holder in accordance with its terms and spirit. It is settled proposition of law that the executing court has no right or authority to go beyond the decree and examine the merits and demerits of such decree or decide the description and boundaries or the measurement of the property because such question were raised and decided in the original suit or in its appeal. As such the same could not be a subject matter of the execution.

Inspite the aforesaid principle, on earlier occasion, at the request of the parties, a technical person posted as sub-Engineer in the Nagar Panchayat Amarpatan, namely, Shri Kushwaha was appointed the Commissioner with a direction to inspect the disputed place and property and submit its report. In compliance of that he inspected the spot in presence of the parties or their representatives and prior intimation of such inspection was also given by him to the petitioner and the report was prepared and submitted by such Commissioner in the Court. According to order sheet dated 7.7.12 Annex. P/13, inspite intimation by the Commissioner to the petitioner, he was not presented at the time of inspection but his son Pintu alias Pushpendra Gupta was present and in his presence, the measurement and demarcation of the disputed side was carried out but on asking the Commissioner to the aforesaid Pushpendra to sign the papers, he refused the same.

After taking into consideration the objections and grounds of the petitioner stated in aforesaid both the application, the executing court has categorically held that the Commissioner report submitted by the aforesaid Sub Engineer is in accordance with the direction of the Court and, in such premises, issuing the further commission is not required and the necessity of cross-examination of the aforesaid Commissioner was also not found vide order dated 25.7.12 Annex. P/14.

Although the petitioner''s counsel has assailed aforesaid both the orders on their factual matrix so also on the ground that such Commissioner report being prepared by the Commissioner in the absence of the petitioner is neither in accordance with the direction of the court nor the same is binding against the petitioner.

In view of elaborate and speaking orders of the trial court, I have not found any merits in the submission of the petitioner''s counsel, on which the impugned order could be interfered at this stage. In view of the aforesaid, I have not found any material circumstance in the matter which require any interference under the superintending jurisdiction of this court enumerated under Article 227 of the Constitution of India. Consequently, this petition being devoid of any merits is hereby dismissed.