IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.R. No. 41 of 2011 Date of decision: 14.6.2011 Jagat Ram ….. Petitioner. Vs. Prem Lal …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. S.C. Sharma,Advocate For the Respondent : None. Kuldip Singh, J(Oral). This revision has been directed against the order dated 21.3.2011 passed by learned Civil Judge (Sr. Division), Karsog, in CMP No.22-VI/2011, rejecting the prayer of the petitioner for appointment of Local Commissioner under Order 26 Rule 9 read with Section 151 CPC. 2. It has been contented on behalf of the petitioner that the suit of the applicant was decreed by learned Addl. District Judge, Mandi and the operative part of the judgment dated 2.4.1994 is as follows:- “In view of my findings on point No.1, the appeal is accepted with costs and the impugned judgment and decree are modified to the effect that, apart from the relief of removal of slab projection granted Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… in favour of the plaintiff-appellant by the learned trial Court, the plaintiff-appellant is also entitled to a decree for mandatory injunction directing the defendant-respondent to remove his construction over an area of 0-0-7 Bigha of land in Khasra No.1139/206/1, as shown in the Tatima Ex.P-2, and further not to interfere in any part of Khasra No.1139/206, in any manner, belonging to the plaintiff-appellant. Thus, the suit of the plaintiff- appellant is decreed in the aforesaid terms. Decree sheet be prepared accordingly. The record of the learned lower court be sent back with a copy of this judgment. The present file be consigned to the Record Room.” 3. It has been submitted that the petitioner has filed an execution petition by invoking Order 21 Rule 32 CPC for execution of the decree. In the execution petition an application under Order 26 rule 9 read with Section 151 CPC for appointment of Local Commissioner was also filed. 4. The application was contested by the respondent. The learned executing Court vide order dated 21.3.2011 has rejected the application for appointment of Local Commissioner. 5. In the application for appointment of Local Commissioner, it has been stated that the issues have not been framed and the case has yet to be listed for recording evidence of the applicant but keeping in view rival claims of the parties, it will be desirable that a Local Commissioner may be appointed who should visit the spot and report about spot position with meticulous details. …3… 6. The Executing Court has observed that reasons given in the application do not require for appointment of Local Commissioner in respect of which evidence can be produced by Decree Holder. It has also been observed that Decree Holder is looking for some short- cut for succeeding without other evidence. The Decree Holder is required to bring cogent and convincing evidence in this regard. The provision under Order 26 rule 9 CPC can not be lightly resorted to. The aforesaid observations of the learned Executing Court apart, the material question is that petitioner himself in the application under Order 26 rule 9 CPC has stated that even issues have not been framed in the execution petition. The Judgment Debtor is required to prove the averments made in the execution petition. 7. I have gone through the application, it is prolix. It does not pin point the actual grievance and the necessity to appoint Local Commissioner, there is no averment in the application that order passed in the execution petition could not be executed on the spot for want of proper identification. The Decree Holder is already having a decree in his favour and part of the decree is in mandatory form. The Executing Court is required to execute the decree. In case during the pendency of execution petition the Executing Court will come to the conclusion that appointment of Local Commissioner is necessary to execute the decree then the executing Court will be at liberty to pass appropriate order in the execution petition. The application at this stage is premature; the Executing Court has rightly dismissed the application for appointment of Local Commissioner. …4… 8. In view of above, there is no merit in the petition which is accordingly dismissed. All pending applications also stand disposed of. June 14, 2011 (Kuldip Singh), (sks) Judge.