MAHIPAL Vs. PHOLLA

JUDGEMENT

(1.) By means of the present writ petition, petitioners have sought the indulgence of this Court for quashing the judgment dtd. 28/5/2013 passed by Additional District Judge, Roorkee in Civil Revision No.17 of 2003, Pholla vs. Roop Chand & others and further to confirm the order dtd. 25/2/2003, passed by Civil Judge (S.D.) Roorkee in Execution Case No.02 of 1997, Roop Chand & others vs. Pholla.

(2.) Facts in brief are that the predecessors of petitioner nos. 1 to 6 were the plaintiffs in O.S. No.43 of 1996, Roop Chand & others vs. Pholla and were also the decree holders/applicants in Execution Case No.02 of 1997, Roop Chand & others vs. Pholla. They are aggrieved by the judgment dtd. 28/5/2013 passed by Additional District Judge, Roorkee, Haridwar in Civil Revision No.17 of 2003, Pholla vs. Roop Chand & others whereby the revisional court has partly allowed the revision in regard to the order for delivery of possession passed by Executing Court only on the grounds that since the judgment debtor had taken possession of the disputed property subsequent to the passing of decree for prohibitory perpetual injunction, hence it was a new cause of action, therefore, the Executing Court committed irregularity in granting the relief of possession.

(3.) The learned counsel for the petitioner submits that the revisional court while passing the impugned judgment despite considering the admissions of the judgment debtor/ respondent in regard to taking over of possession by the judgment debtor/respondent after the passing of decree in favour of plaintiffs/decree holders had passed the impugned judgment partly allowing the revision and setting aside the order of Executing Court dtd. 25/2/2003 in regard to delivery of possession while confirming the rest of the order had exercised its jurisdiction illegally with material irregularity. He further submits that the revisional court has failed to consider the vast and broad ambit of Order 21 Rule 32 CPC and has only passed the impugned judgment on the grounds that the Executing Court cannot go beyond the decree overlooking the factual aspect of the present case. The revisional court has also failed to appreciate and apply the trite law that multiplicity of proceedings should be avoided and procedure is only a handmaid of justice and technicalities cannot come in way of dispensing justice.