C.R No.6595 of 2010 #1# IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R No.6595 of 2010 Date of decision: 24.2.2011. Nand Kumar .............Petitioner v Krishan Chand and another ..............Respondents CORAM: HON'BLE MR.JUSTICE JASWANT SINGH Present:- Mr.Padam Jain, Advocate for the petitioner. Jaswant Singh,J By filing the present writ petition under Article 227 of the Constitution, decree holder-petitioner has assailed the order dated 15.6.2010 passed by learned Additional Civil Judge (Sr. Divn.), Nabha whereby his execution application under Order 21 Rule 32 CPC has been dismissed. Brief facts of the case are that the decree holder-petitioner filed a civil suit No.148 of 18.7.2002 for permanent injunction restraining the judgment debtors-respondents from raising any type of construction on the joint land described in the head note of the plaint till the partition is made by the competent authority. Suit was decreed vide judgment and decree dated 18.11.2005 (P.1) and judgment C.R No.6595 of 2010 #2# debtors-respondents were restrained from raising any construction on the suit land till the partition is effected by metes and bounds. Thereafter, the decree holder-petitioner filed an application dated 1.3.2006 (P.2) under Order 21 Rule 32 CPC against the defendants- respondents. Upon notice, the defendants-respondents filed reply dated 5.8.2006 (P.3) opposing the application. After hearing learned counsel for the parties and the material available on record, learned trial Court dismissed the application vide impugned order dated 15.6.2010, hence the present petition. Heard learned counsel for the parties and perused the paper book. It is argued by learned counsel for the decree holder- petitioner that the judgment debtors-respondents are trying to raise the construction over the suit property in disobedience and violation of the decree dated 18.11.2005 (P.1) and as such the learned trial Court has wrongly rejected the application under Order 21 Rule 32 CPC thereby causing a great prejudice to the decree holder-petitioner. He further argues that in view of the material available on record, the impugned order is not sustainable and deserves to be set aside. The learned trial Court vide its order dated 12.10.2006 framed the following issues : “1) Whether the JDs have violated the decree dated 18.11.2005?OPDH C.R No.6595 of 2010 #3# 2) Whether the petitioner/DH has no cause of action to file this petition?OPJD 3) Relief” Petitioner examined Sukhdev Singh as AW1, Prem Singh as AW2 and himself as AW3 besides producing their respective affidavits as AW1/A, AW2/A and AW3/A. Judgment and decree dated 18.11.2005 was placed on record as Ex.A/1 and A/2 respectively. It is worthwhile to mention here that none of the three witnesses was produced for cross examination. On the other hand, judgment debtor/respondent produced Raj Kumar as RW1 along with his affidavit RW1/A and thereafter closed his evidence. After hearing both the parties, issues No.1 & 2 were decided together and learned trial Court came to the conclusion that the decree holder-petitioner has failed to prove that the judgment- debtors-respondents have violated or ever tried to violate the decree dated 18.11.2005 and accordingly, decided both the issues in favour of the judgment-debtors/respondents and consequently, dismissed the application under Order 21 rule 32 CPC. A perusal of the order dated 15.6.2010 (P.5) shows that the evidence of decree holder/petitioner was closed on 15.5.2009 after he had availed sufficient opportunities over a period of three years and even the cost was imposed despite his availing last opportunity and the application (P.4) for his cross examination was also dismissed. Since it is a matter of record that none of the witnesses has been produced by the decree holder-petitioner for their cross C.R No.6595 of 2010 #4# examination for the reasons best known to him, therefore, their examination in chief is legally non-existant. The decree holder has to prove his averment by way of adducing legally admissible evidence and merely the statement by way of examination in chief is not sufficient to make out a case for acceptance of his application under Order 21 Rule 32 CPC. Furthermore, Raj Kumar-RW1 has been put to lengthy cross examination at the hands of decree holder-petitioner but nothing could be elicited to support the case of the decree holder- petitioner. The conclusion arrived at by learned trial Court in its impugned order dated 15.6.2010 that the decree holder-petitioner has failed to prove that judgment debtor-respondents have violated or tried to violate the order/observation passed in judgment and decree dated 18.11.2005, in my view, is perfectly legal and justified and does not warrant any interference under Article 227 of the Constitution. Dismissed. 24.2.2011. (Jaswant Singh) manoj Judge