PREM LAL Vs. NASEERA BEGAM

JUDGEMENT

(1.) The instant petition stands directed against the impugned order, recorded by the learned Civil Judge (Senior Division) Una, District Una, H.P. 'upon' execution petition No. 12-10 of 2006, where under the DH concerted to seek execution of a conclusively recorded decree of permanent prohibitory injunction, whereupon the JD was restrained to interfere with the suit property comprised in Khata/Khatoni No. 90/96 Khasra No. 320/92 'whereby' he dismissed the execution petition. The reason assigned by the learned Executing Court for dismissing the execution petition aforesaid, is comprised in the factum of the oral evidence adduced by the decree holder 'not' making any loud categorical communication with respect to the Judgment Debtor infringing the decree of permanent prohibitory injunction pronounced upon him. Moreover, the learned Executing Court in merely relying upon besides considering the oral evidence adduced by the DH in respect of the JD infringing the mandate of the conclusively recorded decree of injunction hence being unworthy of credence for settling findings on the relevant issue, hence appears to have committed a gross impropriety 'whereas' conspicuously its earlier thereto 'refusing relief' to the decree holder upon an application preferred by him under the provisions of Order 26 Rule 9 whereby he asked for appointment of a local commissioner, for an apt determination qua the relevant fact of the judgment debtor violating the decree of injunction, significantly when it comprised the best evidence in respect thereof, has obviously precluded emergence of evidence, whereupon probative worth, if any, of oral evidence may have been dispelled. Besides reiteratedly when the report of the demarcating officer comprised the best evidence in respect of the alleged infringement made by the judgment debtor with respect to the decree put to execution before the learned executing Court. In sequel, the reason 'assigned' by the learned executing Court in refusing relief upon the apposite application instituted before it by the DH under the provision of Order 26 Rule 9 of the CPC, comprised in its being not maintainable during pendency of the execution petition, is both flimsy also is not within the mandate of law, significantly, with there being no explicit statutory prohibition against the executing Court refusing 'relief' upon an application constituted before it, under the provisions of order 26 Rule 9 'upon' hence want of its maintainability before it. Moreover when on a Local Commissioner being appointed, he would have in his report purveyed the best evidence with respect to the alleged infringement(s) made by the JD with respect to the decree of injunction pronounced upon her. In aftermath, refusal of relief by the Executing Court, to the decree holder upon his application preferred before it, under the provision of Order 26 Rule 9 CPC, has smothered eruption of best evidence in respect of the alleged violation made by the JD qua the conclusive decree of injunction pronounced upon her. However, the order of dismissal pronounced by the learned Executing Court upon an application preferred there before under the provisions of Order 26 Rule 9 CPC stood pronounced on 17.04.2014 'whereas' the learned Executing Court dismissed the execution petition under its subsequent orders recorded on 8.4.2016. Also with the decree holder not promptly assailing the pronouncement recorded on 17.04.2014 by the learned Executing Court, though estops him to assail it here before nor he nowat stands vested with any leverage, to while assailing the orders recorded subsequent thereto by the learned Executing Court upon the apposite execution petition, to also assail the verdict recorded by it, upon his application constituted there before under the provisions of order 26 Rule 9 CPC. Besides, an apposite facilitation or a statutory leverage stands bestowed upon a party to the lis, aggrieved, by any pronouncement made by the learned trial Court or the learned first Appellate Court 'upon any motion' constituted there before during the pendency of a civil suit before it or during the pendency of an appeal before the learned First Appellate Court, to dehors his not making a prompt challenge thereto here before, to within the grounds of appeal held in a RSA constituted here before against the verdicts recorded by the courts below, to also assail the pronouncements respectively recorded by the learned trial Court and by the learned first Appellate Court 'upon application(s)' respectively constituted there before during the pendency of the apposite civil suit, ensual whereof, of the aforesaid statutory leverage(s) vis-a-vis the aggrieved litigant, significantly accrues from the mandate held in the provisions of Section 105 of the Code of Civil Procedure, provisions whereof stand extracted hereinafter.

(2.) The bestowing of the aforesaid statutory leverage upon an aggrieved, from an adverse pronouncement recorded upon him qua application(s) instituted before the civil Court concerned or upon applications constituted before the appellate Court, hence visibly ensue qua him on his preferring a second appeal before this Court, 'whereas' with the petitioner herein, invoking the supervisory jurisdiction of this Court, thereupon he may stand estopped to assail the decision recorded by the learned executing Court upon his application constituted there before under the provisions of Order 26 Rule 9 CPC. However, the baulking of the aforesaid endeavour of the petitioner, would be unjust besides would be for the reason(s) ascribed hereinafter hence judicially inexpedient.

(3.) The doctrine of merger holds its sway besides clout inter se the orders recorded by the learned executing Court upon the apposite application preferred by the decree holder under the provisions of Order 26 Rule 9 CPC viz-a-viz the order pronounced upon the Execution Petition, sway whereof remains intact, despite the learned executing Court making its apposite pronouncement upon the application constituted there before under the provision of Order 26 Rule 9 CPC 'prior' to its making its pronouncement upon the earlier there before reared execution petition by the DH. Doctrine whereof stands aroused by the factum qua the apposite endeavour or the assay of DH/petitioner stemming from his aspiration, to thereupon facilitate the learned executing Court, to hence by its proceeding to make an order for the appointment of a local commissioner, hence discern the truthfulness of the apposite execution strived by the DH, significantly also when it there within obviously holds echoings qua the DH hence concerting to adduce best evidence with respect to the judgment debtor infringing the mandate of the decree of injunction pronounced upon her 'whereas' the learned executing Court, has apparently blunted the aforesaid endeavour, though ensuring success thereof, may have enabled the learned executing Court, to, proceed to record an order qua hence the decree of injunction standing hence infringed. Consequently, for forestalling eruption of the ill-eventualities aforesaid, it was rather befitting for the learned executing Court, to record an affirmative pronouncement upon the application constituted there before by the JD under the provisions of Order 26 Rule 9 CPC.