AMARJIT SINGH Vs. BALKAR SINGH

JUDGEMENT

(1.) THIS petition is directed against the order of the executing Court dated April 4, 1984 whereby it accepted the objections filed by the objectors and dismissed the execution application.

(2.) THE petitioner-plaintiff filed a suit for permanent injunction res-training the defendants from making any construction over the Phirni comprised in Khewat/Khatoni Nos. 253, 246, 245 along with their houses built in the adjoining Khasra No. 244 and for mandatory injunction directing the defendants to remove the walls from Phirni passing through Khasra Nos. 253, 246 and 245. On August 19, 1982 the defendants made a statement before the Court that they will not make any construction over Khasra Nos. 253, 246 and 245, if there is already any, then the plaintiff is entitled to get it removed according to due process of law and the defendants will have no objection.

(3.) THEREAFTER Field Kanungo was appointed as Local Commissioner to ascertain the encroachment. He submitted his report and asked for police help. The judgment debtors filed objections purporting to be under Section 47 of the Code of Civil Procedure alleging the same objections which earlier stood adjudicated. The entire approach of executing Court is perverse. He should have ensured that the decree passed by the Court should be executed. The consent decree can be executed in the same manner as a decree passed after contest. There is nothing in law prohibiting the execution of the consent decree. The flaws pointed out by the learned Judge could be rectified by amending the execution application. There is no bar for amending the execution application at any stage. The rules of procedure are handmaid in the administration of justice and are pressed into service to advance the cause of justice and not to thwart it. There is a patent illegality in the order passed by the executing Court. He had on an earlier occasion disposed of the objections filed by the judgment-debtors. Those objections were almost identical to the one which have been raised and disposed of under the impugned order. Rule of res judicata is equally applicable in execution proceedings. Apart from that a judicial order attains finality till it is set aside by the higher Court. In the light of the earlier decision rendered by the executing Court on June 15, 1983, the present objections instituted by the judgment-debtor were not maintainable. There is an apparent illegality. Consequently, this revision petition is allowed and the order made under challenge is quashed. The executing court will dispose of the execution application expeditiously. The parties are left to bear their own costs.