Nand Kishore vs Dharam Vir

Sureshwar Thakur, J

Through an application, cast under the provisions,of, Order 21 Rule 32 of the CPC, the, decree holder hence strived, for, execution, of, a conclusive, and, binding decree, hence rendered by the learned Civil Judge, (Junior Division), Court No. 5, Shimla, (a) wherethrough the defendants, were permanently restrained, from, making interference(s), vis-à-vis, the construction occurring, upon, the suit khasra No. The prima-facie breach as made qua therewith, is avered, to be, comprised, in, the defendants/judgment debtors, damaging the raised pillars, alongwith the iron stair case, (a) construction(s) whereof, were, also averred to be rather within the limits, of, the suit khasra Nos. Obviously, the afore endeavour, was strived, to be repulsed by the defendants/judgment debtors, by theirs instituting a reply, to, the apposite petition, cast before the learned executing Court, (b) however, the learned executing Court, dismissed the application, cast under Order 21 Rule 32 CPC, (c) and, the reason for its hence making a dis-affirmative pronouncement, upon, the apposite application, is, encapsulated, in, the adduced therebefore photographic evidence, not comprising, the best evidence, for, sustaining the espousal, as, reared by the decree-holder.

Be that as it may, even though, the afore photographic evidence, may not, comprise the best evidence, for sustaining, the, decree holders' espousal, (i) however, for ensuring the meteing, of, the deepest deference, vis-à-vis, the conclusive, and, binding decree, put to execution, before the learned executing Court, it was yet enjoined, to, order, for, a valid demarcation, of the relevant site, being carried, by the revenue officer concerned. The afore direction was imperative, as thereupon, the majesty, of, verdicts, of, Courts of law, would be, ensured to be upheld, besides the esteem, of, verdicts, of, the courts of law, would become vindicated. Contrarily, the learned executing Court, merely, for lack of adduction, of, the afore best evidence, rather declined the espoused relief, vis-à-vis, the decree-holders' application, and, hence has not ensured, vis-à-vis, the afore prima-donna parameters, becoming ensured to be redeemed.

In aftermath, the dis-affirmative, pronouncement, as rendered by the learned executing Court, upon, the decree-holders' application, suffers, from a gross non-application, of, mind, and, it is hence quashed and set aside. Furtheronwards, the lis is remanded, to, the learned executing Court, to, after appointing, a, demarcating officer, for, carrying demarcation, of, the relevant site, to, thereafter, in consonance, with, a valid demarcation, as, carried by the Revenue Officer, render an appropriate direction, in accordance with law, upon, the decree holders' application, cast under the provisions of Order 21 Rule 32 CPC. The parties are directed to appear before the learned executing Court, on 11.11.2019.

In view of this, the instant petition stands disposed of. The records be sent down forthwith. All the pending application(s), if any, are also disposed of.