Smt. Sarswati Devi and Shri Radhey Shyam vs Shri Shyam Lal

V.K. Sharma, J.—Heard. The challenge in this petition under Article 227 of the Constitution of India, at the instance of the petitioners/JDs, is against the order dated 31.10.2012, passed by the learned Civil Judge (Senior Division), Nalagarh, District Solan, H.P., whereby an application u/s 151 CPC, filed by them, has been dismissed and consequently orders for re-issuance of warrant of possession have been issued with a direction to deliver vacant possession of the suit property bearing Plot No. 15 to the respondent/DH after dismantling the structure located thereon. Admittedly, a decree for mandatory injunction has been passed in favour of the respondent/DH directing the petitioners/JDs "to quit the suit property, that is, Evacuee Tour No. 15, measuring 1791 sq. feet, situate at Village Manjhouli, Pargana and Tehsil Nalagarh, District Solan, H.P., and to put the plaintiff in possession thereof after removing structures raised by them over this property".

The objections to the execution petition, filed by the petitioners/JDs, had already been dismissed by the learned Executing Court. It was thereafter that the petitioners/JDs moved an application u/s 151 CPC for recalling the warrant of possession, wherein an interim order dated 22.12.2011 was passed by the said court, operative part whereof is as under:

Ld. Counsel for the respondent/D.H. prays time to file reply. After hearing both the parties, I am of the view that map prepared by Field Kanungo Retd. Is not in conformity with the musabi of Department of Rehabilitation, Shimla and the warrant is to be executed in accordance with authenticated site plan and plots on musabi of Department of Rehabilitation and reply to this application be filed on 6.1.2012. Be put up with main case file on that day.

It was thereafter that the aforesaid application u/s 151 CPC for recalling the warrant of possession was dismissed vide the impugned order dated 31.10.2012, operative part whereof is extracted below:

I have also gone through the order dated 2.9.2011. From the perusal of same it also transpired that JD has taken the objections that as per the copy of Aks Sajra, plot No. 20 which belongs to J.Ds, is not situated towards East side, but towards North side to the disputed property and is not directly touching the plot No. 15. It is also alleged in the objections that at the spot plot No. 15 is under the building of Gurudwara. Since, the house of J.Ds is not situated towards East to the disputed property and as such decree passed disclosing the identity of the disputed property in a different way which is not existing at the spot. The objections filed by the J.Ds were dismissed and warrant of possession was issued against the J.Ds to deliver the vacant possession of plot No. 15 after dismantling the structure situated in village Manjhouli Pargana and Tehsil Nalagarh in favour of DH. Therefore, from the perusal of the case file it transpired that these objections have already been stated in the objections filed by the J.Ds which were dismissed vide order dated 2.9.2012. Moreover site plan of the spot has been filed by the order of this court. Hence, the application u/s 151 CPC is not maintainable and same is dismissed. Application is accordingly disposed of. Be tagged with main case file.

Let warrant of possession be again issued against the J.Ds to deliver the vacant possession of plot No. 15 after dismantling the structure situate in village Manjhouli Pargana and Tehsil nalagarh in favour of DH on taking steps within 7 days and report be called on or before 22-12-12. Steps be taken within 7 days.

Admittedly, the judgment and decree dated 08.02.1999, passed by the learned Sub Judge 1st Class, Nalagarh, District Solan, H.P., in Civil suit No. 90/1 of 95/93, titled Shyam Lal vs. Smt. Saraswati Devi and another, copies whereof have been made available by the learned counsel for the petitioners/JDs for perusal of the Court at the time of hearing, out of which the execution proceedings in question have arisen, have attained finality. It being so, the Executing Court cannot go beyond the scope of the decree. It goes without saying that it is for the executing agency to identify the decretal property with exactitude with the help of the relevant authenticated official revenue record and then proceed to execute the decree.

Subject to the above observations, contained in the preceding para of this order, the petition is dismissed. In view of dismissal of the main petition, pending application(s), if any, shall also stand disposed of as infructuous. Copies of the aforesaid judgment and decree returned to the learned counsel for the petitioners/JDs.