Amar Nath vs Shakuntala

V.K. Jain, J.

CM No. 11332/2012 (exemption)

Exemption allowed subject to all just exceptions.

EX.S.A. 4/2012 & CM No. 11331/2012 (stay)

This appeal is directed against the order dated 13.3.2012 passed by the learned Additional District Judge in RCA No. 31/2009, which the appellant filed against the order of Executing Court dated 7.11.2009. The facts giving rise to filing of this appeal can be summarized as under. A decree for possession of one room house number 16/711, Gali No. 12, Military Road, Bapa Nagar, New Delhi was passed by the learned Civil Judge on 17.3.1986 in favour of the respondent herein Smt. Shakuntala and against one Om Prakash. The execution petition filed by Smt. Shakuntala Devi was dismissed by the learned Civil Judge vide order dated 19.11.1996 on the ground that the description of the property, which had been given in the decree, was not sufficient to identify the premises and, therefore, the decree was not executable. The learned executing court took that the view that it could not change or amend the decree nor could it take any fresh evidence to identify the premises. The order passed by the learned Civil Judge was challenged by the decree holder before this Court in Civil Revision No. 1062/1998 which came to be disposed of on 11.10.2004. Allowing the Revision Petition, this Court observed that the property had been described as House No. 16/711, Gali No. 12, Military Road, Bapa Nagar, New Delhi and there had been no confusion about its identity at any point of time either before the trial court or even in the first appeal which the respondent had filed. It was held that since the description of the property was sufficient to identify it, there was no force in the objection raised by the respondent which had been upheld in the impugned order. This Court accordingly set aside the order dated 19.11.1996 and directed that the decree holder will be at liberty to execute the decree.

Vide order dated 7.11.2009, the learned Civil Judge, in execution of the aforesaid decree issued warrants of possession and further directed that in case there are more than one room, possession of one room be given to the decree holder on her identification of that room. It was further directed that in case there is only one room, the possession of the same would be given to the decree holder.

The order passed by the learned Civil Judge was challenged by the appellant by way of RCA No. 31/2009. The learned Additional District Judge disposed of the appeal with directions to the Executing Court to take evidence from the decree holder with respect to the identity of the room in question forming party of property bearing number 16/711, Gali No. 12, Military Road, Bapa Nagar, New Delhi. This is the order passed by the learned Additional District Judge which is under challenge in this appeal.

In my view, the issue as to whether the property subject matter of the decree had been properly described and was identifiable or not stood concluded by this Court vide order dated 11.10.2004, which admittedly was not challenged by the judgment debtor. In view of the order passed by this Court on 11.10.2004, the learned Civil Judge was absolutely justified in issuing warrants of possession with directions that possession of one room shall be given to the decree holder on identification of that room by her. He was also right in directing that in case there is only one room, possession of that room will be given to the decree holder. The learned counsel for the appellant states that he is not aware as to how may room are there in this property. In my view, the learned Additional District Judge acted contrary to the order passed by this Court on 11.10.2004 in directing evidence to be taken with regard to the identity of the room in question. In view of the order passed by this Court on 11.10.2004, he ought to have dismissed the appeal filed by the Objector/Appellant. Since the order dated 13.03.2012 passed by the learned Additional District Judge has not been challenged by the decree holder, nothing further can be done in the matter. However, as far as the present appeal is concerned, I do not find absolutely no merits in the same. This appeal is nothing but yet another attempt to thwart the execution of the decree which was passed about more than 26 years ago. The appeal is accordingly dismissed. However, there shall be no orders as to costs.