NAND LAL POPLI Vs. MUNICIPAL COMMITTEE GURGAON

JUDGEMENT

(1.) THE revision petition is against an order dismissing an application filed by the decree holder complaining of disobedience of a decree for injunction in his execution petition filed under Order 21 Rule 32 CPC. At the time of the suit the plaintiff had apprehended some construction as sought to be made by the judgment debtor and the decree has been passed restraining the defendant from putting up any construction. When the execution petition was filed contending that the in defiance of the decree the defendant has made some constructions, the defence was two fold; i) the construction was there already prior to the decree and therefore decree has become inexecutable and ii) the plaintiff has not established that the defendant has done any act in the suit property to be liable for disobedience of the decree.

(2.) THE executing court found that the petitioner himself admitted that he did not know whether any construction had been made by the Municipal Committee prior to the passing of the decree and that further he had not visited the property for nearly seven years when he gave evidence. The court found these admissions to be fatal and held therefore that the plaintiff had not established the disobedience of the decree.

(3.) THE impugned order is set aside. The matter is remitted to the Executing court which shall appoint a Local Commissioner to demarcate the property with the assistance of the Kanungo of the village concerned and secure a report and dispose of the petition filed by the decree holder in accordance with law. The petitioner shall bear the expenses of the Commission and the ultimate costs will abide by the decision rendered by the Executing Court.