INDRAWATI Vs. DULI CHAND

JUDGEMENT

(1.) Petitioner herein was defendant No. 17B/counter claimant in Civil Suit No. 318 of 2009 titled 'Matu Ram and others Vs. Maha Singh and others', in which his counter-claim was decreed on 7/11/2011; whereas, the suit of the plaintiffs Matu Ram etc. was dismissed. Thus, for the purpose of his counter-claim, petitioner is the decree-holder. He is aggrieved by the impugned order dtd. 5/4/2019 (Annexure P7) passed by ld. Executing Court, whereby his application under Order 21 Rule 32 CPC read with Sec. 151 CPC for enforcement of the judgment and decree dtd. 7/11/2011 regarding his counter-claim, has been dismissed.

(2.) It is contended by ld. Senior counsel that suit of the plaintiffs (contesting respondents herein) seeking declaration and permanent injunction regarding the property in dispute was dismissed; whereas; the counter-claim filed by the petitioner/defendant No. 17B was decreed on 7/11/2011. Ld. Senior counsel has drawn attention towards the copy of counter-claim (Annexure P1), wherein it was specifically pleaded by defendant No. 17B/petitioner that she is the owner in cultivating possession of the suit land. Relief was specifically claimed to the effect that plaintiffs and proforma defendants be restrained from illegally and forcibly occupying the suit land. The said counter-claim of defendant No. 17B was decreed.

(3.) Assailing the aforesaid order dtd. 5/4/2019, it is contended by ld. senior counsel that the order shows clear non-application of mind. The Execution Petition has been dismissed primarily on two grounds that no specific relief regarding permanent injunction had been granted to the petitioner/defendant No. 17B/counter-claimant in the suit culminating in the decree dtd. 7/11/2011 and secondly that the petitioner could have filed fresh suit for possession.