INDER RAM Vs. RADHA KRISHAN

JUDGEMENT

(1.) THIS petition is directed against the order dated 14.3.2007 passed by the Civil Judge (Sr. Division), Hamirpur, whereby he has rejected the application filed by the petitioner herein for appointment of Local Commissioner in an Execution Petition. The decree holder, petitioner herein, had filed a suit against the respondents (judgment debtors), which was decreed in his favour on 20.9.2004, in the following terms:

(2.) AN appeal was carried against the said judgment before the learned District Judge, Hamirpur by two of the defendants but the same was dismissed on 8.11.2005. Thereafter, the petitioner filed an execution petition being Ex. Petition No. 15/2006 before the trial Court. The judgment debtors filed objections to the execution petition. The objections were dismissed by the learned trial Court on 26.8.2006 and the Civil Judge on the said date directed the judgment debtors to comply with the decree in letter and spirit within a period of 30 days, failing which the decree holder would be at liberty to apply for execution of the decree and on 21.11.2006, the trial Court framed the following issue:

(3.) THE decree holder thereafter filed an application under Order 21 Rule 32(5) and submitted that since the decree holder has not complied with the decree, the process of execution of the decree be issued to the Revenue Officer. This application was also contested. The learned trial Court vide order dated 18.1.2007 came to the conclusion that the Court must be satisfied that the decree for injunction has not been obeyed and only then other action can be taken. According to the learned trial Court, unless violation of the judgment and decree is proved, provisions of Order 21 Rule 32(5) cannot be invoked. There is a difference between disobedience of a decree or willful disobedience thereof. The decree holder was complaining that the judgment debtors had not complied with the terms of the decree. The Court had given an opportunity to the judgment debtors to comply with the terms of the decree. Thereafter, the decree holder filed an application praying that a Local Commissioner be appointed to visit the spot and to report whether the JDs have complied with the decree under execution or not and whether the encroachment, as pointed out in the decree, still exists on the spot or not. This application has been dismissed by the learned trial Court primarily on the ground that the provisions of Order 26 Rule 9 are not applicable to an execution petition. The trial Court has relied upon a judgment of Apex Court in Bhushayya vs. Rama Krishanayya (AIR 1962 SC 1886). It appears that the learned trial Court has not even perused the bare provisions of the CPC. The authority relied upon by the trial Court was given in the context of the Civil Procedure Code as it stood prior to its amendment in the year 1976. Vide The Code of Civil Procedure (Amendment) Act, 2002, Rule 18-A and Rule 18-B have been inserted. Order XXVI Rule 18-A reads as under:-