Pohap Singh v. Faridabad Complex Admn & Anr.

CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Kul Bhushan Sharma, Advocate for the petitioner. Rakesh Kumar Garg, J. (Oral) CM No.2008-CII of 2010 Application is allowed subject to all just exceptions. CR No.1338 of 2009 By way of this petition, the petitioner decree-holder had challenged the impugned order dated 10.9.2008 whereby his petition under Order 21 Rule 32 CPC for taking the action against the respondents for not obeying the decree dated 12.10.1977 passed in Civil Suit No.574 of 1975 by the then Sub Judge, 1st Class, Ballabgarh has been rejected. As per the averments made in this petition, a decree was passed in favour of the petitioner in Civil Suit No.574 of 1975 decided on

12.10.1977 whereby the respondents were restrained permanently from forcibly dispossessing the petitioner from the suit property except in due course of law. It is the case of the petitioner that after passing of the aforesaid judgment and decree, the respondents moved an application against him under Section 4 of the Public Premises Act for ejectment and CR No.1338 of 2009 (O&M) 2 compensation, which was dismissed vide order dated 12.2.1982. It has been further stated that the appeal filed by the respondents against the aforesaid order was also dismissed. It is the grievance of the petitioner that on 29.8.1991, the respondent-Corporation through its employees demolished the double storied house constructed in the suit property along with other properties constructed therein illegally and unlawfully and in sheer disobedience of the decree dated 12.10.1977 and thereby caused a loss of Rs.10,00,000/- to the decree-holder and thus, the respondents were liable to be detained in civil imprisonment under Order 21 Rule 32 CPC and further to pay the compensation of Rs.10,00,000/- to the decree-holder.

The aforesaid application filed by the petitioner was contested by the respondents denying the allegations of disobedience of the decree in question. It was specifically denied that they had demolished the suit property as alleged by the decree-holder. It was submitted that under the garb of the aforesaid decree in question, the decree-holder had tried to encroach upon the adjoining land of Corporation bearing Khasra Nos.152 and 153 by raising temporary structure and jhuggies. A notice under section 50(2) was issued to the decree-holder which was not received by him. Neither he removed the encroachment and thereafter, a fresh notice was issued which was also refused by the decree-holder. Subsequently, the encroachment was removed on 28.9.1991 from the land of the corporation. On the basis of the pleadings of the parties, the Executing Court framed the issues and after perusal of the evidence concluded that the decree-holder/petitioner has failed to prove that the respondents had disobeyed the decree in question vide impugned order.

I have perused the impugned order and the record of this CR No.1338 of 2009 (O&M) 3 petition. While passing the impugned order, the Executing Court had noticed that the petitioner filed Civil Suit No.234 on 18.10.1991 against the respondents and alleged that the respondents had demolished their constructions existing on the suit property and the property which was subject matter of Civil Suit No.574 of 1975. In that case, a specific issue was framed which reads as follows: “Whether the defendant illegally demolished the part of the suit property on 29.8.1991 being a subject matter of suit No.574/1975 decided on 12.10.1977, if so to what effect? OPP” The aforesaid issue was decided against the decree-holder- petitioner and it was held that some construction already demolished by the defendants judgment-debtors cannot be termed as illegal as the said construction was over an area which was in fact not belonging to the petitioner.

Relying upon the aforesaid finding, the Executing Court has held that the aforesaid finding on the same issue amounts to res judicata between the parties. I could not find any material on the record of this revision petition on the basis of which the aforesaid conclusion reached by the Executing Court can be interfered with. No merits. Dismissed. January 28, 2010 (RAKESH KUMAR GARG) JUDGE