RAJENDRA BHARTIYA Vs. RAJ RANI

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution is filed by the petitioners impugning order dated 29.08.2010, whereby application of the petitioner filed under Order 21 Rule 97, 99 and 101 CPC read with Section 47 and 151 CPC and application under Order 21 Rule 35 r/w Section 47 and 151 CPC, were dismissed by the executing Court of Civil Judge, Central-04, in Execution petition No. 37/2009.

(2.) CERTAIN facts in brief would demonstrate the conduct of the petitioner being hell bent upon to avoid execution of the decree that was passed against him in suit M-65/1999 (original number 58/1984). The respondents had filed a suit for possession and damages against the petitioner and others in respect of plot No. 13, ad-measuring 123 square yards situated at Jawahar Park, Block-B, forming part of Khasra No. 56 of village Shakarpur, Ilaqa Shahdara, Delhi. The said plot was shown in read colour in the site plan that was attached with the plaint. The suit was dismissed by the Civil Judge vide judgment dated 24.01.2002. The respondents carried the matter in appeal vide RCA 4 of 2002 (re-numbered as RCA No. 29/2003/02). The appellate Court of ADJ vide judgment dated 11.11.2003 set aside the decision of the Civil Judge and decreed the suit in favour of the respondents/plaintiffs. The respondents/plaintiffs filed execution being Execution Petition No. 37/2009 for execution of the judgment and decree dated 11.11.2003 of ADJ. The petitioners filed an application under Order 41 Rule 5 CPC for stay of the execution petition on various grounds, which came to be dismissed by the executing Court on 18.12.2009. The same was challenged in this Court vide CM(M) 1541/2009, which came to be dismissed by this Court on 23.12.2009. The petitioner moved further and filed application under Order 41 Rule 21 CPC before the Court of ADJ for re-hearing the appeal, which also came to be dismissed by the ADJ on 22.04.2010. The petitioners filed appeal against this order before this Court under Order 43 Rule 1 CPC vide FAO 190/2010 and this FAO also came to be dismissed by this Court vide detailed order dated 27.09.2011. The petitioners did not stop, but filed second appeal being RSA No. 92/2010 against the judgment dated 11.11.2003 of ADJ, which also came to be dismissed by this Court on 27.09.2011 along with pending applications. Now, when the executing Court further initiated the execution, the petitioners filed two applications, one under Order 21 Rule 97, 95 and 101 CPC and another under Order 21 Rule 35 reads with Section 47 CPC. Both these applications came to be dismissed by the executing Court vide the impugned order dated 29.08.2012.

(3.) THE finding of facts have been confirmed by this Court in FAO and RSA and that has now become resjudicata. The only controversy that was sought to be raised by the petitioners, time and again, was with regard to identification, alleging that the respondents had stated that the aforesaid plot bearing No. 13 bear Municipal No. D-55, D-65 and D-58, known as Laxmi Nagar, Shakarpur, and that these are the numbers of Plot No. 12 which was in possession of the petitioners. This is nothing but another attempt to create confusion. When the petitioners are found to be in unauthorized possession of the plot bearing original number 13, which is adjoining to Plot No. 12, and new municipal numbers have been given to both these plots, it may be that the aforesaid municipal numbers might have been given to the plot of original number 13. This is nothing, but another device to mislead the Court and this issue has already been dealt with by the courts below as also by this Court in different orders. The petition is nothing but frivolous and mischievous. The petitioners have been able to delay the trial of the case filed in the year 1984 up till 2002, and after the decision of the appellate Court of ADJ on 11.11.2003, have successfully managed and manipulated to avoid the execution, by filing repeated petitions before the executing court as also first appellate Court and this Court, as noted above. Such persons do not deserve indulgence by this Court and such litigation needs to be checked with stern hand. The petitioners being unscrupulous persons and still showing their adamancy, during the course of arguments, deserve to go back with some message.