Paras Ram vs Dayawati and Others

L.N. Mittal, J.—Decree holder (DH) has filed this revision petition under Article 227 of the Constitution of India assailing order dated 14.05.2013 passed by the executing Court thereby framing issue in the execution proceedings and requiring the parties to lead evidence. Vide judgment and decree dated 30.11.2012 Annexure P-5, suit filed by petitioner against respondents was decreed for permanent injunction restraining the respondents/defendants from interfering in peaceful possession of the plaintiff/petitioner over the suit property to the extent of his share. Immediately thereafter, the petitioner filed execution petition dated 15.12.2012 Annexure P-6 alleging that respondents/judgment debtors (JDs) were forcibly stopping the petitioner from entering the suit land and, therefore, police assistance and protection was prayed for.

JDs submitted before the executing Court that they were not causing any such hindrance as alleged by the petitioner-DH.

Since there was disputed question of fact between the parties as to whether the JDs were causing hindrance in violation of the decree or not, the executing court has framed following issue and has required the parties to lead evidence thereon:

Whether the judgment debtor is causing any hindrance in the right of the decree holder to use his land as per decree dated 30.11.2012?

I have heard learned counsel for the petitioner and perused the case file.

Counsel for the petitioner reiterated that in spite of injunction decree, the JDs are stopping the petitioner-DH from entering the suit land and, therefore, police help should be provided to the petitioner.

The aforesaid contention cannot be accepted at this stage. It is only averment of the petitioner that JDs are causing hindrance in use of the suit land by him. However, there is no material on record to substantiate the said plea of the petitioner. On the contrary, JDs have specifically submitted before the executing Court that they are not causing any such hindrance as alleged by the DH. Thus it has become a disputed question of fact which can be decided only after framing of issue and giving opportunity of leading evidence to the parties. The executing Court has, therefore, adopted right course of action in doing so. Merely at the asking of the DH, without there being any material in support of his plea regarding alleged obstruction by the JDs, police help cannot be granted even as interim measure. For the reasons aforesaid, I find that the executing court has rightly framed aforesaid issue and has given opportunity to the parties to lead evidence. There is no perversity, illegality or jurisdictional error in impugned order of the executing Court in this regard so as to call for interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. The revision petition lacks any merit and is accordingly dismissed in limine. However, it is expressly made clear that nothing observed hereinbefore shall be construed as expression of opinion on merits of the execution proceedings pending before the executing Court.