Upendra Kumar Singh vs Satya Narayan Prasad Chourasia

Sanjay Kumar Dwivedi, J

Heard learned counsel appearing for the petitioner and learned counsel appearing for the sole opposite party.

This petition has been filed under Article 227 of the Constitution of India for quashing of the order dated 17.02.2024 passed in Execution Case No.664 of 2014 by learned Civil Judge (Senior Division)-IX, Dhanbad whereby the petition dated 10.10.2023 filed by the petitioner/judgment debtor for appointment of Pleader Commissioner under Order 26 Rule 10(A) of Code of Civil Procedure has been rejected.

Learned counsel appearing for the petitioner submits that the respondent herein instituted a suit being Title Suit No.119 of 2001 before learned Sub-Judge, 1st Dhanbad for declaration of right, title and interest and recovery of possession in respect to the land mentioned in Schedule B and further for restraining the petitioner/judgment debtor from interfering with the possession of plaintiff in Schedule B. He further submits that Schedule B property includes 2 decimals land in Plot No.4305 and 2 decimals land in Plot No.4306, Mouza – 51, Dhanbad. He then submits that by judgment dated 30.08.2013, the learned Court has decreed the suit on contest in favour of the plaintiff/respondent. He submits that aggrieved to that the petitioner herein preferred Civil Appeal No.97 of 2013 before learned District Judge-XIV, Dhanbad. The learned First Appellate Court vide judgment dated 17.09.2018 dismissed the appeal preferred by the petitioner and affirmed the order of the learned trial court, thereafter, the petitioner herein further preferred Second Appeal being S.A. No.534 of 2018 before this Court, however the said was further dismissed by order dated 14.05.2019 and against that the petitioner has moved before Hon’ble the Supreme Court in Special Leave to Appeal (C) No.4138-4139/2020 which was dismissed by order dated 17.02.2020 passed by Hon’ble Apex Court. He submits that for the execution of the decree the Execution Case No.664 of 2014 was filed by the decree holder and in that case the petition under Order 26 Rule 10(A) of the CPC was filed for appointment of the Pleader Commissioner for holding the scientific investigation with regard to iron bridge removal which has been rejected. He submits that on the ground of easementry rights, it has been tried to make out a case by the decree holder that the said iron bridge is coming in the way on the decretal property and in view of that only the learned Court has been pleased to reject the same. He submits that once that dispute is there rightly the prayer was made and in view of that the order of the learned executing court may kindly be set aside.

On the other hand, learned counsel appearing for the sole opposite party submits that the petitioner has already lost up to the Hon’ble Supreme Court and during the pendency of the execution case two earlier petitions have been filed and earlier two petitions was there with regard to stay of execution and for maintenance of status quo which has been rejected by the learned executing Court by order dated 22.12.2023. He submits that this is the third petition before the learned Court and the learned Court appreciating all the facts and further considering that the petitioner has given an undertaking before the Nazir by way of signing the document that within two days the said will be removed and in spite of that it has not been done and in view of that the learned Court has rightly passed the order.

It is an admitted position that the petitioner herein happened to be the judgment debtor has lost the case up to the Hon’ble Supreme Court which has been noted in the argument of learned counsel appearing for the petitioner. Before the executing court earlier two petitions filed by the petitioner have been rejected by the learned executing order by order dated 22.12.2023. Nazir report is on the record wherein it has been disclosed that on the identification of the decree holder, the Nazir told the judgment debtor to vacate the decretal premises and hand over the same to the decree holder, so that the order of the Court shall be complied and so far the structure in question is concerned, two days’ time was prayed for removing the same on the ground that for arrangements of experts for removing the same is required and the said undertaking was signed by the petitioner/judgment debtor and decree holder in the presence of Nazir. Considering that the learned Court has found that only to delay the proceeding in handing over the decretal amount, the said petition has been filed.

Under Order 26 Rule 10(A) of CPC, the Court has discretion to order local investigation or not. The object of local investigation is not so much to collect the evidence which can be taken in Court but to obtain evidence which from its peculiar nature can only be had at the spot. There may be cases where the object of the issue of Commission itself will be lost by ordering notice before passing the order for the issue of Commission. It is further not in dispute at any stage the said petition can be filed and it is for the court to consider whether pleader commissioner is required to be appointed or not.

The petitioner has already given an undertaking in front of the Nazir which was signed by the petitioner and the judgment debtor to remove the said structure on the ground of technical arrangement for removing the same and in view of that it is an admitted position that the said structure was required to be removed.

In the case of Committee of Management, Anjuman Intezamia Masajid, Varanasi (Gyanvapi Mosque Committee) v. Rakhi Singh and Others reported in (2024) 3 SCC 336 the Hon’ble Supreme Court at paragraph No.12.5, it has been held as under :-

“12.5 While an order for conducting a scientific investigation or survey under Order 26 Rule 9 may be passed at any stage, ordinarily a scientific survey ought not to be ordered until the court is cognizant of the issue that would arise in the suit.”

In the case in hand, the petitioner has already lost up to the Hon’ble Supreme Court and two petitions filed earlier has been rejected by the learned Court and thereafter third petition has been filed. When the undertaking was already given to remove the said structure there is no ground to interfere with the impugned order, as such this petition is dismissed.