IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision : No. 37 of 2009 Date of Decision : June 5 , 2009 Sh. Milap Chand Petitioner/J.D. Versus Sh. Ramesh Chaudhary and others Respondents/D.H. Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Ajay Sharma, Advocate, for the petitioner. For the respondents : Mr. Ashok Chaudhary, Advocate, for the respondents. Sanjay Karol, J (Oral) The present Revision Petition has been filed by the judgment debtor against the order dated 6.3.2009 passed by the Civil Judge (Junior Division), Ist Class (II), Palampur, District Kangra, H.P. in execution petition No. 8/3, titled Ramesh Chaudhary and others versus Milap Chand, dismissing the objections filed in the execution petition. In terms of judgment and decree dated 6.9.2001 passed in Civil Suit No. 416 of 1994 by the Sub Judge, Ist Class, Court No. 2, Palampur, District Kangra, H.P. a decree for mandatory injunction 1 Whether reports of Local Papers may be allowed to see the judgment? 2 was passed against the present petitioner/judgment debtor whereby they were asked to hand over the vacant possession of the land by way of demolition of construction raised by them on land comprised in khata No. 60, khatauni No. 172, khasra No. 419, measuring 0-03- 16 hectares, situated in Mohal Dadh Jhikla, Mouza Dadh, Tehsil Palampur, District Kangra, H.P. (hereinafter referred to as the suit land). The judgment debtor unsuccessfully assailed the same right up to this Court and admittedly judgment and decree dated 6.9.2001 has attained finality. The judgment debtor opposed the execution of the said decree by filing objections which are reproduced in toto as under: “ In the court of Civil Judge (Jr. Division), Palampur, H.P. In execution proceedings: Ramesh Chand -Vs- Milap Chand (Execution proceedings) Objections on behalf of the Judgment Debtors. Sir, The Judgment Debtor by way of objections submits as under: 1. That the execution proceedings are in-executable as the decree holder while filing suit has not enclosed any Tatima on the basis of which he is laying claim on the land in possession of the judgment debtor. 2. That the Judgment debtor has his house which is existing since 1977 and in the proposed execution the decree holder is seeking possession of his land by demolition of the structure and there is no Tatima regarding demolition of any specific portion of the house of the judgment debtor, the 3 execution proceedings cannot be implemented in the absence of the same. 3. That the decree holder was fully aware about the existence of the house of the judgment debtor when he filed the suit, he failed to produce on record the specific portion of the land claimed by him and as such the decree can not be enforced as the same would result in causing damages to the house of the Judgment Debtor. It is, therefore, prayed that the execution proceedings, being unexecutable may kindly be dismissed. Judgment Debtor VERIFICATION It is verified that the contents of this objection are true and correct to the best of my knowledge and belief and nothing material has been concealed therein. Milap Chand Through counsel: (I.S. Guleria) Advocate. ” The decree holder filed its reply which is also reproduced as under: “1. In reply to para 1 of the application: That the contention of the Objector/J.D. is entirely incorrect. The decree as per by this Hon’ble Court is to be executed in its letter and spirit and there is hardly any need to enclosed any Tatima as alleged by the Objector/J.D. The Hon’ble Sub Judge Palampur has passed a decree for mandatory injunction by way of demolition of construction raised by the J.D. in the suit land. 2. In reply to para 2 of the application: Not admitted. The construction raised by the Objector/J.D. in the suit land and 4 further construction during pendency of the suit as has been clarified by the Respondent/D.H. and is liable to be demolished. It is incorrect that for want of Tatima, the decree cannot be executed. The Objector/J.D. has never pleaded in any court of law upto the High Court, the decree which he is assailing in the present objections it is incorrect that the house of the J.D. is existing in Khasra No. 419 since 1977 as alleged. 3. In reply to para 3 of the application: That the entire construction of the J.D. in the suit land is liable to be demolition as is very clear from the judgment and decree.” After hearing the parties, the Court below held that the plea of the judgment debtor, that in the absence of a tatima (spot map/site plan) the decree cannot be executed is unsustainable for the reason that no such plea was ever taken by them either in the suit or in appeal before the High Court assailing the judgment and decree dated 6.9.2001. The Court further did not find favour with the contention raised by the judgment debtor that on khasra No. 419 the judgment debtor had constructed a house in the year 1977 as from the judgment and decree dated 11.9.2006, passed by this Court in an appeal, it was evident that the house stood constructed in the year 1991-92. Mr. Ajay Sharma, learned counsel for the petitioner has referred to and relied upon the ratio of law laid down by this Court in Bali Ram versus Mela Ram and another, 2002 (3) Shim. L.C. 131 and Sh. Sohan Lal versus Sh. Sadhu Ram, Latest HLJ 2003 (HP) 154 to contend that there was a triable issue raised by the judgment 5 debtor, hence the executing Court ought to have framed an issue and afforded opportunity to the parties to lead evidence to ascertain the factual position at site. According to him, as per the latest field map (tatima) the petitioner’s house is situated on khasra number other than 419, as khasra numbers 419, 420 and 421 have been merged into new khasra number 390. Hence the identification and ascertainment of the suit property can only be got done with the aid and advise of the revenue officials. Per contra, Mr. Ashok Chaudhary, learned counsel for the decree holder has placed on record the jamabandi (revenue papers) and has contended that old khasra No. 419, only has been assigned new khasra No. 387 and newly assigned khasra No. 390 is not subject matter of the suit property as old khasra Nos. 418, 420 and 421 have been assigned new khasra numbers 386 and 390. According to him the petitioner has misled this Court by deliberately making false averments. I have heard learned counsel for the parties and also perused the record. It is a matter of record that averments made in the present petition are not supported by an affidavit. Further merging of old khasra numbers and formation/re-numbering of new khasra numbers was a plea which was never raised by the petitioner before the executing Court. That apart, in the reply filed by the decree holder duly supported by an affidavit and revenue record placed on 6 record, it is evident that the petitioner’s contention that old khasra No. 419 stood merged in khasra No. 390 is contrary to record. That apart the identification of the suit property is not in dispute. Hence tatima/spot map not having been attached with the plaint cannot be a ground for resisting the execution of the decree, more particularly when this plea was never raised either before the Trial Court or before the appellate Court wherein the judgment and decree passed by the Trial Court was assailed by the judgment debtor. Hence the plea raised by the judgment debtor is untenable in law and needs to be rejected. In Bali Ram (supra) the Court was dealing with the case where the confusion had arisen with regard to the preparation of tatima prepared by the Patwari and not a Kanungo as was sought to be urged by the plaintiff. Two tatimas, one produced by the plaintiff Ext.PW 4-A and one produced by the defendant Ext.DW 3/A were found to be incapable of reconciliation. It is in this background that the Court, while hearing the appeal filed against the original decree held that in exercise of its power under Order 26 Rule 9 CPC, the Court, suo moto could have directed local investigation for the purpose of elucidation of the matter in dispute. These are not the facts herein. Either before the Trial Court or the Appellate Court the location and identification of the suit property was not in dispute. In Sohan Lal (supra) the Court was dealing with the case where the judgment debtor, in opposition to the execution petition 7 took up a specific defence that the decree was not executable in view of the agreement entered into between the parties after the date of the decree. It is in this background that the Court held that specific issue with regard to satisfaction of the decree was required to be framed and opportunity afforded to the parties to lead evidence to prove the same. These are not the facts herein. Importantly the Court cautioned that if the objections are prima facie frivolous, vexatious, intended to delay the execution, vague and would amount to abuse of process of the Court, the Executing Court may dismiss them without holding any inquiry. The objections taken by the petitioner/judgment debtor are infact frivolous, vexatious and false and have been taken only with the intention of delaying the execution of the decree. Petitioner deserves no sympathy and the decree dated 6.9.2001 affirmed by this Court in terms of judgment dated 11.9.2006 needs to be executed immediately. The present petition being devoid of any merit is dismissed. CMP No. 152 of 2009 In view of dismissal of revision petition, the present application is also dismissed and interim stay is vacated. (Sanjay Karol), Judge. June 5, 2009 (PK)