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Judgment
Honourable Mr. Justice G. Rajasuria
A resume of facts absolutely necessary for the disposal of this Civil Revision Petition would run thus:
The learned counsel for the Revision Petitioners, drawing the attention of this Court to the impugned order of the Lower Court, would pyramid his arguments which could succinctly and precisely be set out thus:
The Lower Court, in paragraph-11 of the judgment has observed thus:
When the suit properties is a common pathway, we cannot expect a specific extent, breadth, width, length or linear measurements and boundaries in respect of the said pathway. Thus, this Court is of the view that when the suit properties has been clearly identified in the schedule to the decree with sketch, it is for the Court Amin to say that the properties could be identified or not?
The said observation is quite antithetical and contrary to the features available on the ground. The decree is vague and no head or tail could be made out of it. It is not having the back-up of revenue records and in such a case, it is a well-neigh impossibility to locate the suit property and enforce the decree for mandatory injunction. If an Advocate Commissioner is not appointed to locate the suit property at the first instance, then it will lead to travesty of justice and the Court Amin might wrongly demolish some other property under the pretext of enforcing the mandatory injunction decree.
Whereas, the learned counsel for the first respondent / decree holder, inviting the attention of this Court to the very suit property as found described in the schedule of plaint as well as in the decree, would advance his arguments which could pithily and precisely be set out thus:
The width of the pathway is mentioned as eight feet. At the E.P. stage there cannot be a broad based roving enquiry at the instance of the judgment debtor''s son who has been impleaded as legal heir of the judgment debtor and he should not be allowed to thwart or divert the course of justice.
The point for consideration is as to whether the appointment of an Advocate Commissioner at this stage is absolutely necessary or not.
No doubt, the narration of facts as put forth and set forth by the learned counsel for the decree holder, would connote and denote that the width of the pathway is eight feet. Over and above that, it could also be seen from the averments available on the plaintiff''s side that the pathway is almost two portions in a ''L'' shaped manner, each measuring 2th cents. On the judgment debtor''s side, it has been projected as though the decree was passed without any basis, etc. At the E.P. stage, the judgment debtor cannot try to call upon the Court to conduct re-trial. In the mean time, the decree should be properly executed. The balance has to be struck and accordingly, I am of the view that there is nothing wrong on the part of the Lower Court in expecting that the Court Amin should, at the first instance, visit the suit property and file a report if he finds any difficulty in executing the decree.
However, I would add one more direction to such view expressed by the Lower Court, that the Court Amin should be directed to visit the property with the help of a Government Surveyor, locate the suit property and do the needful as per the decree. However, the Court Amin, while locating the suit property and enforcing the mandatory injunction, finds any difficulty, it is for him to report to the Court concerned and get further orders; whereupon, the Court shall issue further directions as per law, as it might deem fit and proper. With the above observations and direction, the Civil Revision Petition stands disposed of. Consequently, the connected miscellaneous petitions are closed. No costs.