Savitri Devi vs Rattani Devi and Others

V.K. Ahuja, J.—Present petition has been filed by the Petitioner under Article 227 of the Constitution of India challenging the order, dated 25.1.2009, passed by the learned Civil Judge (Senior Division), Kangra in Execution Petition No. 18 of 2005.

A notice of the petition was issued to the Respondents.

I have heard the learned Counsel for the parties and have gone through the record of the case.

The Petitioner as Plaintiff had filed a civil suit for permanent injunction and the learned trial Court, vide its judgment and decree, dated 6.10.2004, decreed the suit and the following relief was granted by the learned trial Court:

...the Plaintiff is held entitled to the relief of mandatory injunction prayed for. So, an ex parte decree for mandatory injunction directing the Defendant to remove the Gharat and Challa from point "A" shown in the site plan Ex.PW-1/B within the period of one month from today and to restore the property to its original position is hereby passed in favour of the Plaintiff and against the Defendant with no order as costs.

The Plaintiff/Petitioner filed an application under Order 21 Rule 32 CPC alleging that the JD has not complied with the said direction of the court and has violated the decree and as such he be sent to civil imprisonment or his property be attached. The learned trial Court vide its impugned order dismissed the application observing that it is not clear as to which structure is to be demolished as per the decree since the Petitioner has failed to file the site plan. The site plan in question, on the basis of which the decree was passed, has already been exhibited as Ext.PW-1/B in the proceedings before the learned trial Court. No fresh copy of the site plan was required to be produced by the Petitioner since the site plan was attached in the record of the civil suit, which was the basis of the decree, and the same should have been considered by the learned trial court. In case any fresh copy has been placed on record, it would not have been entertained by the learned trial Court since it was not proved according to law. The basis of the decree was the site plan duly exhibited in the Court, the learned trial court should have seen the record of the case including the site plan and considered as to whether the decree can be executed in this manner or that the JD has not complied with the decree and is liable to be sent to civil imprisonment or his property is liable to be attached, as the case may be. The question has to be considered by the learned trial Court referring to the site plan Ext.PW-1/B proved in evidence by the Plaintiff.

Accordingly, the impugned order passed by the learned trial Court is set aside. The learned trial Court shall consider the site plan proved in the case as Ext.PW-1/B and see as to what relief is to be granted and can be granted in the facts and circumstances of the case. The parties through their counsel are directed to appear before the learned trial Court on 2.11.2011. The Registry is directed to send the records of the case alongwith a copy of this judgment forthwith so as to reach well before the date fixed.

The petition stands disposed of accordingly, so also the pending application(s), if any.