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Judgment
Rajiv Sharma, J.—This petition is directed against the order dated 02.06.2010, passed by the learned Civil Judge (Senior Division), Court No. 1, Shimla, H.P. in Case No. 27/10 of 2005.
Material facts necessary for adjudication of this petition are that the petitioners/decree-holders (hereinafter referred to as "the decree-holders" for convenience sake) had filed a suit for specific performance of contract and in the alternative for damages in the Court of learned Sub Judge, 1st Class, Court No. 1, Shimla on 01.07.1995. Learned Sub Judge, 1st Class (1), Shimla dismissed the suit for specific performance of contract on 01.08.2003. However, the decree-holders were held entitled to recover a sum of Rs. One lac from the defendant alongwith interest at the rate of 6% per annum from the date of filing of the suit till the realization of the said amount, on making good deficiency in Court fee affixed, within 7 days from the date of judgment.
Respondents-judgment-debtors, namely, Smt. Pushpa Chauhan and Digvijay Singh (hereinafter referred to as "the judgment-debtors" for convenience sake), filed an appeal against the judgment and decree dated 01.08.2003 before the learned District Judge, Shimla. It was assigned Civil Appeal No. 68-S/13 of 2003. Learned District Judge dismissed the appeal on 13.09.2005.
Decree-holders filed an Execution Petition in the Court of learned Civil Judge (Senior Division) (1) on 19.10.2005. The Objections were filed to the Execution Petition on 23.10.2006. The decree-holders filed reply to the same on 21.06.2007. Learned Civil Judge (Senior Division), Court No. 1, Shimla sustained the objections and the Execution Petition was dismissed on 02.06.2010. Hence, this Revision Petition.
In order to effectively adjudicate upon this petition, it will be pertinent to refer to paragraph No. 21 of the judgment dated 01.08.2003, passed by the learned Sub Judge 1st Class (1), which reads thus:
..21. As per above discussion suit of plaintiff for specific performance of contract is dismissed. However, the plaintiff is entitled to recover sum of Rs. One lac from the defendant alongwith an interest at the rate of 6% per annum from the date of filing of the suit till the realization of the said amount, on making good deficiency in court fee affixed, within 7 days from the date of judgment. Keeping in view facts and circumstances of the case, parties shall bear their own costs. Decree sheet be prepared after requisite court fee is placed on record by the plaintiff and the file after completion be consigned to record room.
Civil Suit No. 70/1 of 96/95 was filed against the predecessor-in-interest of the judgment-debtors, one Shri Yashpal Chauhan. The present judgment-debtors were brought on record after the death of Sh. Yashpal Chauhan, being the legal heirs.
The primary objection taken in the objections filed to the Execution Petition, is that specific liability of the particular defendant has not been given and the expression defendant has been used without specifying from which of the defendant the decree was executable.
In the reply filed to the objections, the stand of the decree-holders was that the judgment-debtors have inherited the rights and liabilities of their predecessor-in-interest late Shri Yashpal Chauhan in equal proportions and, therefore, they are liable to satisfy the decree in that proportion under the law.
Mr. Anuj Nag, learned counsel for the petitioners has strenuously argued that learned Civil Judge (Senior Division), Court No. 1, Shimla has failed to exercise the jurisdiction vested in him. According to him, the decree in question dated 01.08.2003 was capable of execution. According to him, all the judgment�debtors have inherited the rights and liabilities of their predecessor-in-interest in equal proportion. He then argued that the expression defendant is clerical and in fact what was intended to in the judgment and decree dated 01.08.2003, is that all the defendants were liable to pay a sum of Rs. One lac.
Mr. Harish Dod, learned counsel for respondents No. 1 and 2 has supported the order dated 02.06.2010.
I have heard the learned counsel for the parties and gone through the pleadings carefully.
The suit was instituted by the decree-holders against Shri Yashpal Chauhan. He died during the pendency of the suit and his L.Rs./legal representatives were brought on record. The relief of specific performance has been dismissed by the learned Sub Judge, 1st Class (1), Shimla on 01.08.2003. However, the decree-holders were held entitled to a sum of Rs. One lac from the defendants with interest @ 6% per annum from the date of filing of the suit till the realization of the said amount. There were three defendants in the Civil Suit. It was necessary for the learned Sub Judge 1st Class (1), Shimla to state precisely from which of the defendants, the money is recoverable. The decree to this effect is vague and, thus, not capable of being executed. In the Execution Petition, there is no averment regarding the respective shares, the judgment-debtors may have inherited from their predecessor-in�interest, late Shri Yashpal Chauhan. There are no details of the moveable or immovable property inherited by these judgment-debtors from Shri Yashpal Chauhan. Merely stating in the reply filed to the objections that the judgment-debtors have inherited the shares in equal proportions of the property of late Shri Yashpal Chauhan is not sufficient. It is true that ordinarily, the executing Court cannot go beyond the decree, however, in the instant case, as discussed hereinabove, the decree dated 01.08.2003 is not capable of execution since specific liability of a particular defendant has not been given and the expression defendant has been used without specifying from which of the defendant the decree was executable. Moreover, the details of the shares which the judgment-debtors have inherited from their predecessor-in-interest Shri Yashpal Chauhan have not been given.
Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this petition and the same is dismissed. The pending application(s), if any, also stands disposed of. No costs.