UPENDRA KUMAR SINGH Vs. SATYA NARAYAN PRASAD CHOURASIA

JUDGEMENT

(1.) Heard learned counsel appearing for the petitioner and learned counsel appearing for the sole opposite party.

(2.) This petition has been filed under Article 227 of the Constitution of India for quashing of the order dtd. 17/2/2024 passed in Execution Case No.664 of 2014 by learned Civil Judge (Senior Division)-IX, Dhanbad whereby the petition dtd. 10/10/2023 filed by the petitioner/judgment debtor for appointment of Pleader Commissioner under Order 26 Rule 10(A) of Code of Civil Procedure has been rejected.

(3.) Learned counsel appearing for the petitioner submits that the respondent herein instituted a suit being Title Suit No.119 of 2001 before learned Sub-Judge, 1st Dhanbad for declaration of right, title and interest and recovery of possession in respect to the land mentioned in Schedule B and further for restraining the petitioner/judgment debtor from interfering with the possession of plaintiff in Schedule B. He further submits that Schedule B property includes 2 decimals land in Plot No.4305 and 2 decimals land in Plot No.4306, Mouza ' 51, Dhanbad. He then submits that by judgment dtd. 30/8/2013, the learned Court has decreed the suit on contest in favour of the plaintiff/respondent. He submits that aggrieved to that the petitioner herein preferred Civil Appeal No.97 of 2013 before learned District Judge-XIV, Dhanbad. The learned First Appellate Court vide judgment dtd. 17/9/2018 dismissed the appeal preferred by the petitioner and affirmed the order of the learned trial court, thereafter, the petitioner herein further preferred Second Appeal being S.A. No.534 of 2018 before this Court, however the said was further dismissed by order dtd. 14/5/2019 and against that the petitioner has moved before Hon'ble the Supreme Court in Special Leave to Appeal (C) No.4138-4139/2020 which was dismissed by order dtd. 17/2/2020 passed by Hon'ble Apex Court. He submits that for the execution of the decree the Execution Case No.664 of 2014 was filed by the decree holder and in that case the petition under Order 26 Rule 10(A) of the CPC was filed for appointment of the Pleader Commissioner for holding the scientific investigation with regard to iron bridge removal which has been rejected. He submits that on the ground of easementry rights, it has been tried to make out a case by the decree holder that the said iron bridge is coming in the way on the decretal property and in view of that only the learned Court has been pleased to reject the same. He submits that once that dispute is there rightly the prayer was made and in view of that the order of the learned executing court may kindly be set aside.