PANJAB STATE ELECTRICITY BOARD Vs. CHIRANGA

JUDGEMENT

(1.) The present revision petitioner and one Continental Construction Private Ltd., New Delhi, suffered a decree in a suit for damages and mandatory injunction. The decree was initially passed by the Senior Sub -Judge, Mandi, which was challenged in appeal. The Additional District Judge, Mandi, who decided the appeal on 6 -12 -1985 modified the decree passed by the trial Court. Ultimately, the relevant part of the judgment made in the appeal reads as follows : "In view of the statements of the learned Counsel for the parties recorded above, the judgment and decree of the lower court dated : 1 -5 -1984 is modified to the extent that the Punjab State Electricity Board, appellant shall remove the earth stacked by respondent No. 2 on Barot side of the back of the river so far as it is feasible and upto which extent the vehicle is easily approachable and thereafter place the earth in the land of the plaintiff/ respondent No. 1 Charaga making it cultivable " The decree was sought to be executed by the decree holder who was the first respondent herein in the first execution petition No. 86 of 1986. The present petitioner filed an objection petition under section 47 read with Order 21, Rule 58, C. P.. C. The main objection raised was that the entire amount decreed by the court had been paid and the remaining part of the decree was not executable. According to the judgment debtor, the land was not easily approachable as no vehicle can pass through the same and that the objector had visited the spot and prepared a spot rnap which showed that there was no approach to the land of the decree holder Reliance was placed upon the language used in the appellate judgment and in particular the words "so far as it is feasible". The said objections of the present petitioner were taken on file as Objection Petition No. 53 of 1989.

(2.) The executing court passed an order on 18 -5 -1989 dismissing the objection petition No. 53 of 1989 on merits after recording evidence in the proceedings. It was pointed out by the executing court that the judgment debtor had not examined any responsible officer of ihe Electricity Board and it had only placed reliance on the statement of OW 1 Jai Gopal Pat -wari who had only stated that the vehicle cannot cross the river. The executing court observed that the execution of the decree for the purpose of removal of debris in the land of the decree holder was possible when the water of the river dries up in winter months by deploying adequate measures. Accordingly the objections were dismissed. Thereafter the main execution petition was also dismissed on 5 -8 -1989 for statistical purposes as unsatisfied as it was not possible during winter and rainy season and directed the decree holder to file a fresh execution petition

(3.) The present execution petition No. 21 of 1990 was filed on 13 -3 -1990 In the execution petition a specific reference has been made by the decree holder to the earlier order passed by the executing court on 18 -5 -1989 and the order passed on 5 -8 -J 989. The present petitioner sought to raise the same objections once again on the merits but they were over -ruled by the executing court holding that it was not open to the judgment debtor to raise the same objections which were negatived in the prior proceedings The order of the executing court has been passed on ,M -l993. It is the said order which is challenged in this revision petition by the judgment debtor.