PRITAM CHAND ALIAS PRITAM SINGH Vs. SATPAL

JUDGEMENT

(1.) By way of present petition filed under Art. 227 of the Constitution of India, challenge has been laid to order dated 1.9.2018 passed by learned Senior Civil Judge (Senior Division), Nadaun, District Hamirpur, Himachal Pradesh in CMA No. 35 of 2018, whereby an application having been filed by the petitioner-judgment debtor (hereinafter, 'judgment debtor') under Order XXVI, rule 9 CPC, praying therein for appointment of a local commissioner, came to be dismissed.

(2.) Precisely, the facts of the case, as emerge from the record are that a civil suit having been filed by the respondent-Decree Holder (hereinafter, 'Decree Holder') for Whether reporters of the Local papers are allowed to see the judgment? . permanent prohibitory injunction, came to be decreed vide judgment and decree dated 25.2.2014. Vide aforesaid judgment and decree passed by learned trial Court, judgment debtor came to be restrained from removing the lateral support to the house of the Decree Holder situate over land comprised in Khata No. 19 min., Khatauni No. 39, Khasra No. 251, measuring 0-01-51 Hectares situate in Tika Ser Uperla, Mauza Kohla, Tehsil Nadaun, District Hamirpur, Himachal Pradesh. Vide aforesaid judgment and decree, learned trial Court also directed the judgment debtor to restore the lateral support shown in the site plan as Ext. PW-

(3.) /A with red ink, to its original position. Since, after passing of the aforesaid judgment and decree, judgment debtor failed to restore the lateral support to the house of the Decree Holder, an execution petition No. 23 of 2015, came to be instituted in the court of learned Senior Civil Judge (Senior Division), Nadaun (Annexure P-1). In the aforesaid petition, an application under Order XXVI, rule 9 CPC came to be filed on behalf of judgment debtor praying therein for appointment of a local commissioner. Judgment debtor averred in the application that the site in the execution petition has been wrongly mentioned by judgment debtor just to mislead this Hon'ble Court, whereas, house of the Decree Holder is situate over Khasra No. 257. judgment debtor prayed that for just and proper decision of the case, report of local commissioner assisted by the Patwari and Kanungo is very much essential, as such, local commissioner duly assisted by Patwari and Kanungo may be appointed to ascertain the fact whether the judgment debtor has demolished the lateral support or not? Aforesaid prayer made by judgment debtor was rejected vide impugned order, as a consequence of which, judgment debtor is before this Court in the instant proceedings. 3. Having heard learned counsel for the parties and perused the material available on record, this Court finds no illegality or infirmity in the impugned order passed by learned Court below, because, admittedly, learned executing Court cannot go beyond the judgment and decree sought to be executed in execution proceedings. It is also settled law that the proceedings, if any, under Order XXVI, rule 9 CPC cannot be allowed to be used to create evidence in favour of the party seeking appointment of local commissioner. Onus, in the case at hand is upon the judgment debtor to prove on record by leading cogent and convincing evidence that, pursuant to judgment and decree sought to be executed, he has already restored the lateral support to the house of the Decree Holder. Definitely, judgment debtor cannot seek help of court to create evidence that he has already restored the lateral support to the house of the Decree Holder by making prayer for appointment of a local commissioner.