IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 172 of 2010 Date of decision : 24.5.2010 ____________________________________________________ Virender …Petitioners. Versus Baldev Chander …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the petitioner : Mr. Sanjay Dutt Vasudeva, Advocate. For the Respondent : None. Kuldip Singh, J(Oral) The petitioner has prayed for setting aside orders dated 3.1.2003, 17.6.2009 and 19.1.2010. The learned counsel for the petitioner has submitted that due to typing mistake prayer has been made for setting aside order dated 3.1.2003 instead of order dated 29.10.2004. Be that as it may, even if order dated 20.10.2004 is read in place of order dated 3.1.2003 still it will not materially affect the ultimate decision in the petition. 2. The facts in brief are that a decree of permanent prohibitory injunction was passed by the learned trial Court on 1.7.1998 against the petitioner. The petitioner had filed an appeal against judgment, decree dated 1.7.1998. The Decree Holder had ______________________ ¹ Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2 also filed Cross-Objections in the appeal of the petitioner in the lower Appellate court for not granting mandatory injunction. The appeal of the petitioner was dismissed and Cross-Objections were allowed by the lower Appellate court on 1.3.2001. The matter was carried in RSA No.327 of 2001 which was dismissed on 5.7.2002. 3. The Decree Holder had filed an application dated 3.1.2003 under Order 21 Rule 32 CPC against the petitioner for not obeying the decree. The petitioner was proceeded exparte before the learned Executing Court on 29.10.2004. On 17.6.2009, the learned Executing Court has ordered issuance of warrant of possession, directing the Judgment Debtor to hand over the possession of the suit land alongwith structure existing thereon, failing which proceeding to attach property of the Judgment Debtor and his imprisonment are to be taken. A direction was issued to the officer-in-incharge of the Police Station, Nadaun to render police assistance while getting the warrant of possession executed upon the Judgment Debtor. 4. On 19.1.2010, the learned Executing Court had ordered that since the Revenue Agency, who has to execute the warrant of possession is apprehending assault at the behest of the judgment debtor and his associates, therefore, it was deemed just and appropriate to direct the officer-in-charge of Police Station, Nadaun to provide a good team of police personnel to render assistance to the Revenue Agency in getting the warrant of possession executed upon the judgment debtor as and when they are approached for such assistance. The learned Executing Court ordered issuance of warrant of possession. 3 5. The learned counsel for the petitioner has submitted that petitioner was not served in the execution petition and therefore, orders dated 29.10.2004, 17.6.2008 and 19.1.2010 are wrong and illegal and same be set aside. 6. The petitioner has annexed copies of various orders from the execution file. The order dated 11.3.2003 indicates that one Mr. R.S. Thakur, Advocate had appeared before learned Executing Court on behalf of the petitioner on that date. The same advocate had appeared on behalf of the petitioner (judgment debtor) in the Executing Court on 24.6.2003 and 15.10.2003. On 15.10.2003 even time was prayed for filing the reply. Thereafter Mr. R.S. Thakur, Advocate stopped appearing on behalf of the petitioner (judgment debtor). On 27.4.2004, the learned Executing Court again ordered notice to judgment debtor for 29.10.2004. On 29.10.2004, the learned Executing Court has recorded that judgment debtor has been served but he was not present and therefore, he was proceeded exparte. 7. The orders dated 11.3.2003, 24.6.2003 and 15.10.2003 are clear to show that petitioner (judgment debtor) had appeared in the Executing Court through his advocate. On 29.10.2004 the learned Executing Court has observed that petitioner (judgment debtor) despite service had not put in appearance and therefore, he was proceeded exparte. In the petition nothing has been stated specifically by the petitioner regarding his service for 29.10.2004. The subsequent order dated 17.6.2008 and 19.1.2010 have been assailed by the petitioner on the grounds that he was not served, therefore, these orders are wrong. 4 8. The petitioner had put in appearance in the Executing Court through his advocate as noticed above; he did not appear in the Executing Court on 29.10.2004 and therefore, proceeded against exparte. Once petitioner was proceeded exparte on 29.10.2004 there was no legal requirement to serve him again. Therefore, no fault can be found with the orders dated 29.10.2004 and 19.1.2010. The challenge to orders dated 29.10.2004, 17.6.2008, 19.1.2010 is hit by delay and laches also. The copies of the orders were applied on 16.4.2010 and were made available to petitioner on 17.4.2010 and petition was filed on 21.5.2010. There is no merit in the petition which is accordingly dismissed. May 24, 2010 (Kuldip Singh) (sks) Judge.