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Judgment
The decree-holder in a suit for declaration and mandatory injunction as well khas possession has preferred the instant two revisional applications.
By virtue of the order dated January 6, 2017, which is impugned in C.O. 653 of 2017, the Court turned down the prayers of the decree-holder/petitioner for appointing a fresh survey-passed investigation commissioner and for effecting delivery of the decretal property with the help of the said newly-appointed commissioner in favour of the petitioner.
By virtue of the order dated October 10, 2018, which has been challenged in C.O. 3913 of 2018, the executing court refused the prayer of the decree-holder/petitioner for stalling the execution case further on the ground of pendency of C.O. 653 of 2017 and dropped the execution case in view of the decree having been satisfied.
Learned Counsel for the petitioner argues that the property, regarding which possession was sought to be delivered in favour of the petitioner, did not tally with the actual decretal property and as such there was no other option for the petitioner but to record his dissatisfaction as to such delivery of possession and to seek appointment of a fresh commissioner.
On the other hand, learned counsel for the judgment-debtor/opposite party submits that the commissioner-in-question was appointed at the choice of the decree-holder himself. The two surveyors who assisted the said commissioner were also named by the decree-holder/petitioner. It is further argued that it is the habit of the decree-holder/petitioner to record his dissatisfaction every time the decree is sought to be executed, thereby unnecessarily harassing the judgment-debtor.
It appears from the materials on record as well as the findings arrived at in the impugned order, that survey-passed investigation commissioners went to effect delivery of possession, along with the court bailiff, twice previously and both times they were frustrated in doing so due to vehement opposition on the part of the petitioner/decree-holder. Each and every time, it appears, the decree-holder opposes the delivery of possession on the ground that a property different from the actual decretal property was sought to be delivered.
This, in effect, raises a question not only as to the bona fides of the decree-holder/petitioner but as to whether the description of the suit property, on which the petitioner was successful in obtaining a decree up to this court, was actually an honest depiction of the reality.
In fact the last-appointed commissioner, in his report, elaborately mentioned about comparison with the two commissioners' reports, which were the basis of the decree-in-question, as well as having taken help of two surveyors, both suggested by the decree-holder himself, while seeking to deliver possession of the decretal property to the decree-holder. Despite such elaborate report, the decree-holder, for the third time, expresses his dissatisfaction as regards the identity of the property-in-question, which is on the face of it mala fide.
As such, the executing court was justified in turning down the prayers of the decree-holder/petitioner for appointment of a fresh commissioner and delivery of the decretal property afresh in favour of the petitioner. Consequently, the executing court was also justified in refusing further adjournment and dropping the execution case. In fact, the attempt of the petitioner appears to be harassive, for which the judgement-debtor/opposite party ought to be compensated with costs.
Accordingly, C.O. 3913 of 2018 and C.O. 653 of 2017 are dismissed on contest with composite costs of Rs.20,000/- , payable by the petitioner for both the matters in favour of the opposite parties through their learned advocate in this court.
Such costs are to be distributed equally inter se between the opposite parties.
Urgent website certified copies of this order, if applied for, be given to the parties upon compliance of all necessary formalities.