RAJINDER PARSAD Vs. RAJ SINGH

JUDGEMENT

(1.) THIS revision petition is against the order dated 20.8.1994 passed by the Executing Court under Order 21 Rule 32 of the Code of Civil Procedure holding that the petitioner -Judgment debtor has failed to obey the decree dated 28.5.1990 and so his property be attached.

(2.) BEFORE examining the matter, it would be appropriate to briefly notice the salient facts leading to the present controversy. Raj Singh filed a suit for permanent injunction restraining Rajinder Parsad - petitioner - from interfering in his possession over the land comprised in Khasra No. 130. His claim was decreed vide judgment and decree dated 28.5.1990. It is the case of the decree holder that after the passing of the decree, judgment debtor has illegally and forcibly occupied a portion of Khasra No. 130 and further wants to encroach upon the land to install a hand pump and construct a wall. This way he is guilty of disobeying the decree and so action needs to be initiated under Order 21 Rule 32 of the Code of Civil Procedure. Thus a prayer was made that the judgment debtor be detained in civil prison and his property be attached.

(3.) THE petitioner has assailed the order of the executing Court on a number of grounds; (i) that the execution application does not disclose any particulars of the violation. No details or dates of the alleged violation have been mentioned in the execution application; (ii) that the petitioner had no notice of the appointment of the Local Commissioner nor had such a commissioner been appointed by a civil Court; (iii) that the report of the Local Commissioner is per se contrary to the directions of the Financial Commissioner for resolving the boundary disputes; and (iv) the petitioner's restaurant is in existence over Khasra No. 129 long before even the passing of the decree on 28.5.1990. Elaborating, the counsel urged that neither the execution application nor the evidence in any way suggest that the judgment debtor has violated the mandate of the decree. This being the position, the impugned order is legally unsustainable. Even the approach of the executing Court is erroneous as whole reliance has been placed upon the report of the Local Commissioner stated to have been appointed by the Assistant Collector IInd Grade and that too without any notice to the petitioner.