Shri Bhagwan Das Nasa vs Shri Ajit Singh Through L.Rs.

Indermeet Kaur, J.—The order impugned before this Court is the order dated 07.07.2004 vide which the execution petition filed by the decree holder seeking execution of the decree dated 25.08.1977 had been dismissed.

Brief facts are that a suit for mandatory injunction had been filed by the Plaintiff; decree for mandatory injunction had been passed on 25.08.1977. In terms of that decree, the Defendant had been directed to demolish the unauthorized construction comprising of two rooms and a partition wall shown in yellow colour in the site plan Ex. PW-7/6. The judgment debtor had filed an appeal against that decree; a compromise was effected between the parties before the first appellate court; this was in terms of an application under Order 23 Rule 3 of the CPC (hereinafter referred to as the ''Code'') filed by both the parties jointly for recording the terms of their compromise. The decree dated 25.08.1977 stood modified; in terms of the aforenoted compromise, the appeal was dismissed; the terms of compromise were contained in the application under Order 23 Rule 3 of the Code Ex. A-1. Ex. A-1 had recited that No. further addition, alteration or construction in any part of the premises shall be made by the tenant; the tenant had further undertaken to pay a sum of `40/- per month w.e.f. 01.08.1978 for the use of the additional construction already carried out by him; further the landlord shall not revoke the license during the occupation of these premises and this arrangement would continue till such time that the said additional construction is removed by any Government authority. In terms of the aforenoted undertakings given, the judgment debtor had withdrawn his appeal. This was vide judgment and decree dated 05.12.1978.

Thereafter the contention of the landlord was that unauthorized construction was raised by the tenant which was a breach of the undertakings dated 05.12.1978; he had preferred a contempt petition. That contempt petition was disposed of by the order of the High Court dated 06.11.1998; the Court had noted that Ajit Singh (original tenant) had expired, the question of limitation for initiating contempt also coming in the way, the Petitioner had been advised to move an execution application as contempt proceedings could not be used for executing an order. With these directions, the contempt petition had been disposed of.

The present execution petition had then been filed. It is relevant to point out that execution petition had sought the execution of the decree dated 25.08.1977; it was not of the decree dated 05.12.1978 which had modified the earlier decree dated 25.08.1977 whereby that decree stood modified. The parties led evidence before the executing court. The executing court vide its impugned order had appreciated the fact that the execution had been sought of the decree dated 25.08.1977 which stood superseded and merged with the later modified decree dated 05.12.1978; the original decree had lost its force and stood merged in the compromise decree dated 05.12.1978; this was not the subject matter of execution petition. In these circumstances, petition had been dismissed. This order in No. manner warrants any interference. The petition is without merit.

Dismissed.