Mukhtiar Singh vs Piara Singh and Others

L.N. Mittal, J.

C.M. No. 9566-C-II of 2010:

Application is allowed and Annexure P-1 is taken on record subject to all just exceptions.

Main Case:

Decree Holder (DH) Mukhtiar Singh has filed the instant revision petition u/s 115 of the CPC (in short - CPC) assailing order dated 20.01.2007 passed by the Executing Court i.e. learned Civil Judge (Junior Division), Patiala, thereby dismissing the execution petition filed by the petitioner DH.

Vide judgment and decree dated 14.10.1988 (Annexure P-1), suit filed by the petitioner was decreed for permanent injunction restraining the respondents-defendants from interfering in any manner in user of path, water pump and bathroom illegally and forcibly, otherwise than in due course of law. The petitioner filed first execution petition on 20.01.1990 alleging that the respondents/JDs had demolished the water pump on 14.01.1990 in contravention of the decree. The said execution petition was dismissed as withdrawn on 20.01.1998. Thereafter, second execution petition was filed on 07.06.1999 alleging that the respondents had demolished the water pump on 23.01.1990 and have also demolished the bathroom. The petitioner accordingly prayed that the respondents be committed to civil prison and their property be also attached till they restore the hand pump and bathroom. Compensation of Rs. 50,000/- was also claimed.

Respondents alleged that instant second execution petition is not maintainable as first execution petition was dismissed as withdrawn. On merits, allegations of petitioner DH were denied. Various other pleas were also raised.

Learned Executing Court, vide impugned order dated 20.01.2007, dismissed the execution petition. Feeling aggrieved, the DH has filed the instant revision petition.

I have heard learned Counsel for the parties and perused the case file.

Learned Counsel for the petitioner vehemently contended that the petitioner had withdrawn the first execution petition with liberty to file fresh one. However, it is not explained as to why the first execution petition was withdrawn, even if liberty was sought to file fresh one. On the other hand, in the first execution petition, it was alleged that the water pump had been demolished on 14.01.1990 and it is for this reason that the said execution petition had been filed on 20.01.1990. However, in the instant second execution petition, it is alleged that the water pump was demolished on 23.01.1990. This contradictory stand of the petitioner himself would reveal the falsehood of his version. Moreover, if the hand pump had been demolished in January 1990 by the respondents, the petitioner would not have remained silent for a long period. It has to be noticed again that after eight years, the petitioner had withdrawn the first execution petition in January 1998. The instant second petition was filed more than one year and four months thereafter.

The petitioner himself appeared in the witness-box and has not led any other evidence in support of his averment that the respondents demolished the hand pump and the bathroom in January 1990. Self-serving statement of the petitioner has been controverted by testimony of Piara Singh - respondent No. 1. It is thus apparent that the petitioner has not led cogent or sufficient evidence to prove his version that the respondents demolished the water pump and the bathroom in contravention of the decree. On the other hand, the petitioner, while appearing in the witness-box, stated in cross-examination that the water pump had been removed even before the filing of the suit, whereas roof of the bathroom had fallen down. Thus, testimony of the petitioner DH himself would reveal that respondents had not done anything to violate the decree. In view of the statement of the petitioner DH himself, the Executing Court was left with no option, but to dismiss the execution petition. Learned Counsel for the petitioner contended that passing of the decree would mean that the water pump was in existence when the suit was filed. However, the petitioner has himself stated to the contrary. Moreover, even if it be assumed that the water pump was in existence when the suit was filed, there is no evidence to depict that the respondents demolished the water pump and the bathroom after the passing of the decree. The statement of the petitioner DH himself depicts that the water pump and bathroom were not demolished after the passing of the decree. No other evidence whatsoever has been led by the petitioner.

For the reasons recorded herein above, I find no infirmity much less illegality in the impugned order of the Executing Court so as to call for interference at the hands of this Court in exercise of limited revisional jurisdiction u/s 115 CPC. The revision petition is without any merit and is accordingly dismissed.