HUKAM SINGH Vs. NAG SINGH

JUDGEMENT

(1.) The petitioners Hukam Singh and others have filed a revision petition under Section 17 of H.P. Land Revenue Act against the order dated 12th October, 1982 of the learned Divisional Commissioner (North). The learned Divisional Commissioner (North) has upheld the order of the Assistant Collector, 1st Grade, on the ground that no material irregularity was committed as a result of which the interests of the petitioners were prejudiced He also held that there was no need to issue a notice to the other parties in view of the provisions contained in Order 21, Rule 22 of C.P.C. Based on these findings, he dismissed the revision petition.

(2.) I have perused the court record and heard the learned counsel for the petitioners as well as the respondent No. 1, who appeared in person and argued his case. The contention of the petitioners is that the order of the learned Divisional Commissioner (North) is bad in law in so far as Order 21, Rule 22 of the C.P.C. is not applicable in the proceedings under the H.P. Land Revenue Act. The other ground for challenging the impugned order of the Divisional Commissioner is that the Assistant Collector, 1st Grade, instead of issuing a warrant of possession, sent the file to the field agency and thereby committed a serious procedural mistake which has resulted in miscarriage of justice. N4oreover, it was also stated that principles of natural justice were violated in so far as the petitioners were not given an opportunity of being heard before the order on the execution application was passed. The case of the respondent is that a notice was not necessary in view of the fact that provisions of C.P.C. are not applicable in the proceedings under the H.P. Land Revenue Act It was also contended by him that there was no question of miscarriage of justice as the petitioners were represented at all stages and in all the courts where the partition proceedings were contested.

(3.) The point for determination is whether provisions of C.P.C. are applicable in this case and consequently whether principles of natural justice have also been violated by not giving an opportunity to the petitioners before the warrant of possession was issued. In the instant revision petition the order of partition of the land is not being challenged In fact, the order of partition, which was contested earlier, has now become final and is pending execution. Perusal of Order 21, Rule 22 of C.P.C. regarding the execution of a decree reveals that a notice against execution is required to be given in cases where an application for execution is made after two years of the date of the decree. In this case the instrument of partition is dated 30th October, 1981 and the application for getting the possession was made on 4th December, 1981. In other words, the application for the execution of the court order regarding the partition was made within two years time. That being the case, it was not necessary for the Assistant Collector 1st Grade to issue a notice to the petitioners in terms of the provisions of Order 21, Rule 22 of C.P.C which is relevant in the execution of the order of partition which is enforceable as a decree. Rule 43 of the Punjab Land Revenue Rules as applicable to Himachal Pradesh envisages that provisions of C.P.C. would be attracted in respect of execution of a decree and delivery of possession. In this case, the proceedings relate to the execution of the order of partition as spelt out in the instrument of partition. In view of the above position, provisions of C.P.C. are attracted and have been rightly invoked by the learned Divisional Commissioner.