RAMAN KUMAR Vs. JYOTI PARKASH

JUDGEMENT

(1.) The learned Sub Judge 1st Class-IV, Hamirpur upon Civil Suit No. 32 of 1998 pronounced a decree of permanent prohibitory injunction and also a decree of mandatory injunction whereby the defendant was restrained from dispossessing the plaintiff, demolishing any portion and causing any damage to the shop shown as ABCD in the site plan measuring 1.65 x 6.38 Mts. Comprised in Khata No. 88, Khatoni No. 103, Khasra No. 283 measuring 3 Kanals 19 Marlas, situated in Tika Kot, Mouza Kohla, Tehsil Nadaun, District Hamirpur.

(2.) The aforesaid decree has attained conclusivity. Since the mandate of the afore extracted decree, pronounced by the learned Civil Court, was purportedly infracted, comprised in the JD threatening to demolish the walls of the suit shop and upon his on 30.8.2009 proceeding to remove the tin sheets laid upon the roof of the shop, thereupon the DH cast a petition under the provisions of Order 21 Rule 32 CPC, before the learned trial Court, wherein a relief was claimed of the JD/defendant being ordered to be committed to civil imprisonment. The execution petition was contested by the defendant/JD, wherein, he contended of his not willfully breaching the mandate of the apposite conclusive decree. Both the plaintiff/decree holder and the Judgement debtor/defendant led their respective evidence upon the apposite issue(s). The learned Executing Court on appraising the evidence, concluded, of, its unveiling the trite factum of the JD/defendant willfully disobeying the apposite decree, pronounced with respect to the suit shop. Thereafter, the petitioner herein/JD has motioned this Court.

(3.) The execution petition carries an averment of the defendant willfully breaching the mandate of the apposite decree, comprised, in his threatening to demolish the walls of the suit shop and in his changing its hitherto tin roof, to bamboo(s) being cast thereon, whereon tarpaulin sheets being laid. However, in respect of the JD/defendant threatening the decree holder/plaintiff, to demolish the wall of the shop, he omitted to make any testification, thereupon the defendant has to be held to in the aforesaid manner, hence not willfully breach the mandate of the apposite decree. The plaintiff/decree holder in respect of the defendant infracting the mandate of the decree aforesaid, comprised, in his replacing the tin sheets carried on the roof of the shop, by, his erecting bamboos thereon, whereon he laid Tarpaulin sheets has rendered a testification, borne in his examination in chief. Also in his examination in chief, he has tendered photograph Ext.PW-1/A wherein tin sheets are displayed to be occurring on the ground in front of the suit shop. Even though upon the solitary testification of the decree holder in respect of the defendant, thereupon willfully infracting the mandate of the apposite decree, it would be unbefitting to form a firm conclusion qua its veracity. (i) Nonetheless when PW-2 a shopkeeper holding a commercial shop in vicinity viz-a-viz the suit shop, has deposed in corroboration thereof; (ii) Furthermore with affirmative suggestions being put by the learned counsel for the JD upon his subjecting the latter to cross examination, wherein echoings occur, of, a carpenter being employed, for removing the relevant tin sheets, suggestion whereof stood acquiesced by PW-2; (iii) Apart from the above, with another affirmative suggestion being also put by the counsel for the JD while holding PW-2 to cross examination, with echoings therein qua at the time, when tin sheets borne on the roof were removed, there being several persons present thereat, suggestion whereof also evoked an acquiescing response from PW-2; (iv) fillips an inference of hence the defendant/JD concomitantly conceding qua the factum of removal of tin sheets carried on the roof of the suit shop hence occurring on 30.8.2009 (v) thereupon since apparently the mandate of the apposite decree stands infracted (vi) renders hence the judgement debtor to be entailed with the ensuing consequence of his openly breaching the mandate of the apposite decree, comprised, in his being amenable for being ordered to be committed to civil imprisonment, as aptly done by the learned trial Court. I find no merit in the petition. The impugned order is maintained and affirmed. The petition alongwith all pending applications are disposed of accordingly.