C. R. No. 6092 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 6092 of 2008 Date of Decision : December 01, 2009 Anil Kishore .... Petitioner Vs. Nanak Chand .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Adarsh Jain, Advocate for the petitioner. Mr. Lokesh Sinhal, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : Decree Holder (DH) Anil Kishore has filed the instant revision petition impugning judgment dated 05.08.2008 passed by learned Additional District Judge, Faridabad. Petitioner filed suit for partition of land measuring 11 marlas comprising in Killa No.20 Rectangle No.224 situated in Hodal Patti Bedha, Tehsil Palwal. Preliminary decree of partition was passed on 21.02.1992. Thereafter, the petitioner moved application for passing of final decree. Local Commissioner was appointed for proposing mode of partition. Accordingly, Local Commissioner made report proposing the mode of partition, as depicted in site plan (Annexure P-2). Southern portion measuring 5 marlas bearing Killa No.224//20/1 was allotted to Judgment Debtor (JD) Khacheru (since deceased), now represented by Nanak Chand- C. R. No. 6092 of 2008 2 respondent, whereas northern portion measuring 6 marlas bearing Killa No.224//20/2 was given to the petitioner. Both the petitioner and respondent's predecessor Khacheru made joint statement (Annexure P-1) dated 15.09.1999 accepting the said mode of partition. Accordingly, final decree of partition dated 27.10.1999 (Annexure P-3) was passed. Site plan (Annexure P-2) was made part of the decree. The petitioner filed execution petition for executing the aforesaid final decree. Girdawar visited the spot for delivery of possession. Vide report dated 20.07.2005, Girdawar submitted report that intervening wall between the portions of the parties was not 8 karams, as depicted in site plan (Annexure P-2), but was 7 karams and if the said wall is taken to be 7 karams, the area of JD would come 142 sq. yds. and area of DH would come to 188 sq. yds. JD preferred objections alleging that the total area being 330 sq. yds., the JD should be given 165 sq. yds. area and not 142 sq. yds. Area. The petitioner DH offered to compensate the JD for the deficient area, out of his (petitioner's) area to make the total area of JD to be 5 marlas as per final decree. In view of said statement made by petitioner DH, the Executing Court (court of learned Civil Judge (Junior Division), Palwal), vide order dated 10.08.2006, dismissed the objections filed by respondent JD against the report dated 20.07.2005 of Local Commissioner for delivery of possession and directed that fresh warrant of possession be issued and possession be delivered as per final decree of partition dated 27.10.1999 and site plan Ex.-X (Annexure P-2) and if there was any deficiency found at the spot in the area of JD, the same be made up from the area of DH. JD preferred appeal against order dated 10.08.2006 passed by the Executing Court. Learned Additional District Judge, Faridabad, vide impugned judgment dated 05.08.2008, has allowed the said appeal observing that the final decree dated 27.10.1999 is not executable and is liable to be set aside. The case was remanded to the successor court of the court that passed the C. R. No. 6092 of 2008 3 final decree, with direction to comply with the final decree in letter and spirit and if it was found that the intervening wall between the portions of JD and DH is 7 karams and not 8 karams, then the court could ask for fresh mode of partition and pass final decree accordingly. I have heard learned counsel for the parties and perused the case file. Learned counsel for the respondent vehemently contended that the mode of partition mentioned the intervening wall to be 8 karams, but the same has been found to be 7 karams and therefore, the final decree as per mode of partition proposed in site plan (Annexure P-2) is not executable and has rightly been set aside by the Appellate Court. On the other hand, learned counsel for the petitioner vehemently contended that the Appellate Court, in appeal against order of the Executing Court, could not have set aside the final decree because in execution proceedings, Executing Court cannot go behind the decree. I have carefully considered the rival contentions. As noticed herein above, final decree of partition dated 20.07.1999 (Annexure P-3) was passed on the basis of joint statement dated 15.09.1999 (Annexure P-1) made by both the parties accepting the mode of partition, as depicted in site plan (Annexure P-2). At that time, both parties admitted that the intervening wall was 8 karams in length, as also reported by the Local Commissioner in site plan (Annexure P-2) proposing the mode of partition. Now, the Local Commissioner, who was appointed to deliver possession, reported the said wall to be 7 karams in length. The respondent JD should have satisfied himself while making statement (Annexure P-1) accepting the mode of partition, regarding the length of intervening wall. The said length cannot be disputed and adjudicated in execution proceedings after final decree of partition was passed and that too, on the joint statement made by both the parties. Moreover, the said final decree of partition was never under challenge. The said decree could not have been set aside in execution C. R. No. 6092 of 2008 4 proceedings. Even assuming for a moment that the final decree is inexecutable on account of length of intervening wall being 7 karams instead of 8 karams, the final decree could not have been set aside, as has been done by the Appellate Court in execution proceedings vide impugned judgment dated 05.08.2008. The petitioner DH has been very fair and has stated that if there is any deficiency in the area of JD, as given in the final decree, the DH is ready to compensate the same from his area. Under the final mode of partition, JD accepted 5 marlas area and DH was given 6 marlas area. However, in the execution proceedings, the JD became dishonest and claimed half of the total area i.e. 165 sq. yds. out of 330 sq. yds. According to the report of Local Commissioner regarding delivery of possession, the area of JD came to 142 sq. yds. and area of DH came to 188 sq. yds. However, the JD should have got a little over 150 sq. yds. and DH has to get a little over 180 sq. yds. Nevertheless the DH is ready to give complete 5 marlas area to the JD and therefore, the final decree cannot be said to be inexecutable. In view of the aforesaid, it is manifest that the impugned judgment of the Appellate Court is completely illegal and unsustainable. The final decree could not have been set aside in execution proceedings, when the final decree was never under challenge by either party. The final decree had attained finality. The same had been passed on the basis of joint statement made by both the parties. For the reasons recorded herein above, the instant revision petition is allowed. Impugned judgment dated 05.08.2008 passed by learned Additional District Judge, Faridabad is set aside and order dated 10.08.2006 passed by the Executing Court is restored. December 01, 2009 ( L. N. MITTAL ) monika JUDGE