IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 609 of 2009 Decided on 05.04.2010 Smt. Raj Devi and others ..…Petitioners. Versus Promila Baxi …..Respondent. Coram The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting? Yes.. For the Petitioners : Mr. Narender Sharma. For the respondent : Mr. K.S. Kanwar. V.K. Sharma, Judge (Oral) The petitioners, who were defendants in Civil Suit No. 257/1 of 2002, titled Smt. Promila Baxi V. Shri Sohan Singh and others, decided vide judgment dated 16.01.2008, Ex.P-4, by the learned Civil Judge (Senior Division), Kasauli, District Solan, have suffered the following decree of declaration:- “For my discussion and findings on above issues, the suit of the plaintiff succeeds and it is accordingly decreed to the effect that the plaintiff is co-owner to the suit land comprised in khata No. 9/22, khasra No. 4, 5, 25/6 min, 7, 8, 9, measuring 15 bighas 7 biswas situated at village Dochi, Pargana basal, Teh. Kasauli, Distt. Solan, H.P. along with other co-sharers and that the defendants are not the tenants of the plaintiff or other co-sharers and consequently the entries showing the defendant No. 1 Sohan Singh and Mohan Singh ( the original defendant No.2) as non occupancy tenants in the column of cultivation in the record of rights for the year 1996-97 are wrong, illegal and not binding upon the plaintiff. Further a ----------------------------------------------------------------------------------- Whether the reporters of the local papers may be allowed to see the Judgment? No. 2 decree of possession is passed in favour of the plaintiff and against the defendants qua the suit land and further the defendants by way of perpetual injunction are restrained from raising construction or changing the nature of the suit land in any manner whatsoever, with costs. Decree sheet be drawn accordingly. The file after its completion be consigned to the record room.” Being aggrieved, they have taken the matter in appeal to the court of the learned District Judge, Solan. However, the appeal having been filed beyond the prescribed period of limitation is stated to be accompanied by an application under Section 5 of the Limitation Act, for condonation of delay in filing the appeal. Admittedly, even the said application is stated to have been once dismissed in default, was later on restored and is pending disposal. However, in the meanwhile, the respondent being the plaintiff has filed execution petition for implementation of the aforesaid judgment, dated 16.01.2008. In that matter, the petitioners being respondents/judgment debtors, were granted sufficient opportunities to file objections and one such opportunity was last opportunity. However, on their failure to file objections within the time granted by the court, their right to file objections was closed vide the impugned order dated 15.9.2009, which is to the following effect::- “Today some more time is prayed for filing objections by the ld. Counsel for the JDs. Disallowed as for today it was granted the very last opportunity to the JDs to file the objections. There is no justification for further adjourning the case for filing of objections by the JDs. Hence, the right to file the objections of the JDs. stands closed under the orders of the court. Let warrant of possession qua the suit property as per the decree sheet be issued against the JDs. for 5.11.2009. 3 I have heard the learned counsel for the parties and gone through the record. The learned counsel for the petitioners submits that objections could not be filed on 15.9.2009, as on that day the learned original counsel for the respondents/judgment debtors was out of station and they were represented by the learned vice counsel. Conversely, the learned counsel for the respondent has vehemently argued that the petitioners have not at all been diligent in conducting the litigation from the very beginning and it being so, they cannot take benefit of their own wrongs and are not entitled for any indulgence from this court. Taking into consideration the facts and circumstances of the case, it is apparent that the petitioners have suffered the aforesaid decree of the court of first instance. The matter is pending before the learned first appellate court by way of an appeal which though has been filed beyond the period of limitation, yet is accompanied by an application with a prayer for condonation of delay in filing the appeal. Such prayer is pending adjudication before the learned District Judge, Solan. In such circumstances, I am satisfied that it shall be expedient and in the interest of justice to grant the petitioners an opportunity to file objections in opposition to the aforesaid execution petition arising out of the impugned judgment and decree dated 16.01.2008. By adopting such course, no prejudice, much less grave prejudice is going to be caused to the respondent, who can very well be compensated by way of costs. In view of the above, the petition is allowed. Consequently, the petitioners are granted an opportunity to file objections to the execution petition arising out of the aforesaid judgment and decree dated 16.01.2008, in Civil Suit No. 257/1 of 2002. The objections 4 shall be filed by 15.5.2010, positively, on which date the execution petition is stated to be fixed for further appropriate orders before the learned court below. However, it shall be subject to costs of Rs. 1000/-, to be tendered on the date fixed, that is, 15.5.2010. It is made clear that in case objections are not filed by due date, the present petition would be deemed to have been dismissed. Once the objections are filed, the learned trial court shall proceed to dispose of the same as expeditiously as possible. The petition stands disposed of in the above terms. (V.K. Sharma) Judge. 5th April, 2010. Lsp*