SHANTI JAISWAL Vs. INDRALAL

JUDGEMENT

(1.) The petitioners- decree holders have filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 11.12.2012, passed by the Civil Judge Class-II, Teonthar, district Rewa in Execution Case No. 67-A/93x97-11 whereby the execution proceeding filed by the present petitioners to execute the decree dated 14.10.1996, passed by Civil Judge, Class-II, Teonthar in COS No. 67- A/93 has been dismissed at the initial stage holding that the measurement of the encroached disputed area has been stated in the scale of hand in the annexed map with the decree and on the basis of such scale of measurement the impugned decree could not be executed.

(2.) The petitioners' counsel after taking me through the averments of the petition as well as papers placed on record argued that the aforesaid decree being passed by the competent court the executing court did not have any authority to dismiss the execution proceeding on the aforesaid ground. If there was any ambiguity in the decree with respect of the scale of measurement of the disputed property, then such question being related to the execution of the decree could have been considered and adjudicated by the executing court in accordance with the scheme and the procedure provided under Section 47 of the CPC. In continuation he said that in any case his execution proceeding could not be thrown away in the manner in which the same has been thrown by the executing court and prayed for setting aside the impugned order with appropriate direction to the execution court to proceed further and execute the decree by admitting and allowing this petition.

(3.) Shri K.S. Jha, learned appearing counsel for the respondents-judgment debtors by justifying the impugned order said that the same being based on proper appreciation of the available factual matrix in which the execution of the decree was not possible, does not require any interference at this stage. He further said that in the lack of any specific scientific scale of measurement in the impugned decree, the same could not have been executed and pursuant to that the executing court has not committed any error in passing the impugned order and prayed for dismissal of this petition.