IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 197 of 2010 Date of decision: 21.09.2010 Bidhi Chand and another Petitioners. Versus Kanshi Ram Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioners: Mr. Suneet Goel, Advocate. For the respondent: Mr. Ajay Chandel, Advocate. Deepak Gupta, J. 1. This petition under Article 227 of the Constitution of India is directed against the order dated 3rd April, 2010 whereby the application filed by the judgement debtor for appointment of a revenue expert as local commissioner in order to ascertain the nature of encroachment over the disputed land has been rejected. 2. It is not disputed that in a suit filed in the year 1992 by Shri Kanshi Ram a settlement was arrived at between the parties and the suit was disposed of in terms of a compromise. Thereafter execution proceedings were filed on 13.11.1998 and I am indeed shocked to note that these execution proceedings are pending for the last 12 years. Even this application for 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes. 2 appointment of a local commissioner was filed in the year 2003 and disposed of after seven year in 2010. In the execution proceedings, on an application, a local commissioner was appointed vide order dated 1.2.1999 and the local commissioner submitted his report. The local commissioner has also been examined as AW-3 and has proved his report as Ext.AW-3/A. This report of the local commissioner has neither been set-aside nor accepted till date. No doubt the judgement debtor has submitted his objections to the report of the local commissioner but as on date these objections have not been decided. Therefore, the learned Executing Court was fully justified in holding that fresh local commissioner could not be appointed till the report of the local commissioner earlier appointed is set-aside. In fact this order is strictly in consonance with the law laid down in CMPMO No.591 of 2009 titled as Amar Singh vs. Narpat Ram, wherein a learned Single Judge of this Court held as follows:- “It is not a case where demarcation report dated 20.6.2009 has been set aside or not accepted by the Court and thereafter the petitioner had applied to the Court for appointment of Local Commissioner to carry out the demarcation. In the present case demarcation of the land in question at the instance of petitioner has already 3 been carried out which has not been set aside. Therefore, judgements relied by the learned counsel for the petitioner are not applicable in the facts and circumstances of the case.” 3. Therefore, the present petition is rejected. It is, however, clarified that the observations of the learned Executing Court that prima facie there is no infirmity in the report of the local commissioner Ext.AW-3/A is obviously only a prima facie opinion made only for the purpose of deciding the application. The objections to the report of the local commissioner must be decided on merits on the basis of the evidence totally uninfluenced by this observation. It is also made clear that in the event of the learned Executing Court setting aside the report of the local commissioner he can appoint a new local commissioner. 4. With these observations this petition is rejected. The learned executing Court is directed to dispose of the execution proceedings as early as possible and in any event not later than 28th February, 2011. Parties through their counsel are directed to put in appearance before the Executing Court on 26th October, 2010. No costs. 21st September, 2010 (Deepak Gupta), J. ™