HIGH COURT OF JAMMU AND KASHMIR AND LADAKH

AT JAMMU

CR No. 33/2013(O&M)

Reserved on 01.09.2023

Pronounced on 10.11.2023

Bashir Ahmed Bhat, Age 72 years

S/o. Abdul Rehman Bhat, R/o.

Ward No. 10, Rajouri.

…..Appellant(s)/Petitioner(s)

Through: Mr. U. K. Jalali, Sr.Advocate with

Ms. Shivani Jalali, Adv.

Vs

1. Bilal Ahmed

2. Farooq Ahmed

3. Ayaz Ahmed

4. Mohd. Naheem

5. Abdul Gafoor

Sons of Lt. Manzoor Ahmed

Residents of Thanamandi, District

Rajouri

6. Nazira Begum W/o. Late Manzoor

Ahmed Residents of Thanamandi,

District Rajouri

.…. Respondent(s)

Through: Mr. Gagan Basotra, Sr. Adv. with

Mr. Sahil Gupta, Adv.

Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

JUDGMENT

1. “As long back as in 1872 (when the CPC of 1859 was in operation), it was

observed by the Privy Council that, “the difficulties of a litigant in India

begin when he has obtained a decree”. The situation, we are afraid, is no

better even today. These observations have been made by the Hon‟ble

Supreme Court of India in the year 2023 in case titled “Pradeed Mehra

v. Harijivan J. Mehta”, 2023 INSC 958. In the present case, the

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petitioner, who at the time of filing of this petition was 72 years of age (as

mentioned in the petition), started his litigious journey in the year 1997

when he was 56 years of age but has not been able to taste the fruits of the

decree earned by him in the year 2003 and upheld by the 1

st

Appellate

Court as well as by this Court, till date when he has attained the age of 82

years.

2. The petitioner had filed a suit for recovery of possession of one single

storeyed shop situated at Village Thanamandi, which as per the case set

up by the petitioner had been illegally occupied by the respondents. It was

pleaded in the plaint by the petitioner that he had constructed a shop

measuring 16‟x11‟ on the part of the land measuring one marla

comprising survey No. 113 min, situated at village, Thanamandi, which

was purchased by him from one Sohan Lal by virtue of a sale deed dated

08.08.1996. The petitioner had earlier filed a suit for permanent

prohibitory injunction against the respondents but during the pendency of

the said suit, the respondents forcibly occupied the shop and placed the

shutter on the shop. The petitioner thereafter withdrew the suit as the same

had been rendered infructuous.

3. The respondents objected to the suit preferred by the petitioner by filing a

written statement, thereby pleading that Sohan Lal had no right or concern

with the land comprising survey No. 113 min, measuring 01 kanal,l5

marlas and the whole of the land had been in possession of respondent

Nos. 1 and 2 since 1969-70 by virtue of an affidavit and agreement to sell

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dated 29.06.1976 executed by the original owner of the land, namely,

Vishwa Nath.

4. After the trial of the suit, the learned Sub Judge, Rajouri (hereinafter to be

referred as the „Trial Court‟) decreed the suit vide decree dated

30.09.2003 in favour of the plaintiff, petitioner herein. The decree was

assailed by the respondent Nos. 1and 2 by way of an appeal before the

learned Principal District Judge, Rajouri (hereinafter to be referred as the

„1

st

Appellate Court‟) and the 1

st

Appellate Court vide its judgment dated

20.04.2009 dismissed the said Civil 1

st

Appeal. It needs to be mentioned

here that while the appeal was pending before the learned 1

st

Appellate

Court, an application was filed by the respondent Nos. 1 & 2/appellants

therein under Order 41 Rule 27 of the Code of Civil Procedure (CPC) for

placing on record the report of the Commissioner that the shop was

constructed over the land comprising survey No. 168/383 and not survey

No. 113 min and the said application was dismissed by the learned 1

st

Appellate Court. Thereafter, the respondent Nos. 1 and 2 preferred the

Civil 2

nd

Appeal and that too was dismissed by this Court vide its

judgment dated 17.11.2009.

5. The petitioner filed a petition for execution of the decree dated 30.09.2003

passed by the learned trial court but the same was dismissed by the

learned JMIC (Munsiff), Thanamandi (hereinafter referred to as „the

Executing Court‟) vide its order dated 20.03.2013 on the ground that the

description/schedule of the shop existing on spot did not tally fully with

the schedule mentioned in the plaint, as it tallied only on two sides i.e.

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CR No. 33/2013

western and northern side of the shop, which was identified by the

petitioner.

6. The petitioner has filed the present petition thereby impugning the order

dated 20.03.2013 passed by the learned Executing Court on the grounds

that in the order impugned, the learned Executing Court has laid much

emphasis by pointing out some differences qua the exact description and

location of the property, but oblivious to the fact that at the time of filing

of the suit, there was a big chunk of open space around the suit property

mainly occupied by the judgment debtors, which position was changed by

subsequent developments in the surrounding areas of the suit shop. It is

also urged that the respondents had repeatedly raised the issue that the suit

shop actually fell in survey No. 383/168 instead of khasra No. 113 min,

but the respondents could not succeed before the 1

st

Appellate Court as

well as the 2

nd

Appellate Court. It is also stated that the Executing Court is

absolutely wrong in appointing the Commissioner for spot verification,

particularly when the Executing Court has no power to upset the findings

of all the Courts and the Executing Court ought to have remained

confined to its jurisdiction without stretching too far the observations

made by this Court in its order dated 03.09.2011 in the revision petition,

as this Court had only observed that the execution should be done strictly

in accordance with the description given in the plaint.

7. Mr. U. K. Jalali, learned Senior Counsel appearing for the petitioner has

vehemently argued that the order impugned has been wrongly passed by

the learned Executing Court, more particularly when the respondents

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CR No. 33/2013

before the trial court in their written statement had specifically stated that

the petitioner had no concern with the land comprising survey No. 113

min and the land measuring 1 kanal and 5 marlas is in possession of

respondent Nos. 1 and 2 pursuant to the agreement to sell dated

29.06.1976 and it were the respondent Nos. 1 and 2 who had constructed

the shop. Mr. Jalali further contended that there was no dispute in respect

of the location of the property as the respondents filed the written

statement in respect of the shop claimed to have been owned by the

petitioner and constructed by him and when the suit was decreed, for the

first time the respondent Nos. 1 and 2 sought to raise the dispute in respect

of the survey numbers before the 1

st

Appellate Court by seeking

permission to place on record the report of the Commissioner but their

prayer was not acceded to and rejected. He has further submitted that this

Court while dismissing the appeal preferred by the respondent Nos. 1 & 2,

had taken note of the defence raised by the respondents in their written-

statement and had returned a finding that the contention of the

respondents that they were in possession of 1 kanal and 5 marlas of land

was not supported by any document. He further argued that with the

passage of time, certain changes took place in the surroundings of the suit

shop and the learned Executing Court could not have rejected the

execution petition filed by the petitioner only on the ground that on two

sides, the description of the suit shop as mentioned in the plaint did not

tally with the position existing on spot. Learned senior counsel for the

petitioner has relied upon the judgments of the Hon‟ble Supreme Court in

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CR No. 33/2013

Satyawati v Rajinder Singh and anr, (2013) 9 SCC 491, Ravinder

Kaur v Ashok Kumar (2003) 8 SCC 289 and Narinder Singh and

others v Kishan Singh (D) th. LRs and others, AIR 2002 SC, 2603.

8. Per contra, Mr. Gagan Basotra, learned Senior Counsel appearing for the

respondents has vehemently argued that the suit shop did not exist on the

land comprising survey No. 113 min of Village Thanamandi, but over the

land comprising survey No. 383/168 and further that the description of the

suit shop as mentioned in the plaint did not tally with the position existing

on spot, as such, the order impugned passed by the learned Executing

Court does not suffer from any illegality or infirmity. He further argued

that factual findings have been returned by the learned Executing Court

and the same cannot be disturbed while adjudicating the revision petition.

Learned senior counsel has relied upon the judgments of the Supreme

Court in Addissery Raghavan v Cheruvalath Krishnadasan, (2020) 6

SCC 275, Rahul S. Shah v Jinendra Kumar Gandhi and others,

(2021) 6 SCC 418 and Shafiqur Rehman Khan and another v Smt.

Mohd. Jahan Begum and others, (1982) 2 SCC 456.

9. Heard learned counsel for the parties and perused the record of the

Executing Court as also the record of the Trial Court.

10. The record divulges that the warrant of possession of the shop was issued

but the same could not be executed, as it was found that the shop did not

fall within survey No. 113 min. On 22.02.2011, the warrant of possession

of the suit shop was issued to the Reader of the District Court for

execution with the assistance of Assistant Commissioner (Revenue),

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CR No. 33/2013

SDPO and SHO Thanamandi. The Assistant Commissioner (Revenue)

vide his report dated 23.03.2011 stated that the shop was existing in

survey Nos. 383 &168 min and not in survey No. 113 min, as such, the

warrant could not be executed. Thereafter, fresh warrant was issued on

18.08.2011 by directing the office to mention proper boundaries of the

suit shop and a perusal of the report dated 05.09.2011 submitted by the

Assistant Commissioner (Rev), Rajouri reveals that the shop was

existing in survey No. 383 (State land) and 168 (road) but the

boundaries of the property in the plaint tallied with the location of the

shop on spot. The reference to the order dated 03.09.2011 passed by this

Court was also made in the said report.

11. It needs to be noted here that the respondents had filed a revision petition

and the same was disposed of by this Court vide order dated 03.09.2011,

thereby directing that the warrant of possession be executed strictly in

terms of the plaint. Assistant Commissioner (Rev), Rajouri sought further

directions from the Executing Court in light of the order passed by this

Court. Thereafter, pursuant to directions of this Court vide order dated

03.09.2011, fresh warrant for execution of decree was issued on

21.11.2012. A report was submitted by the Nazir that the description of

the shop on spot did not tally with description of the suit shop as

mentioned in the plaint.

12. A perusal of the record of the Executing Court further reveals that the

Executing Court being confronted with the contradictions in the reports

submitted by the Assistant Commissioner Revenue, Rajouri, Reader of the

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CR No. 33/2013

District Court, Rajouri and Nazir directed the Tehsildar Thanamandi to

constitute a team of officers/officials of the Revenue Department under

his supervision and conduct the demarcation of the decreed shop as per

the position existing on 06.11.1997 i.e. the date of filing of the suit and

the present position supported by the revenue record.

13. The Commissioner conducted the demarcation and prepared the dasti

khaka (site plan) and thereafter submitted a report No. OQ/574 dated

04.02.2013 along with revenue record i.e. khasra girdhawari of kharif for

the year 1997 and 2012. The learned Executing Court after comparing the

description of the surroundings of the shop as mentioned in the plaint and

with the description of the surroundings of the shop as mentioned in the

report dated 04.02.2013 returned the finding that the description of the

surroundings of the shop as mentioned in the plaint tallied only on two

sides i.e. western and northern sides of the shop existing on the spot and

dismissed the execution petition by placing reliance upon the directions

issued by this Court while disposing the revision petition vide order dated

03.09 2011.

14. The only issue arising for the determination by this Court is as to whether

the learned Executing Court has wrongly exercised the jurisdiction vested

in it for the purpose of executing a decree by refusing to execute the

decree on the ground that the description of the shop existing on the spot

tallied only with the two sides of the description of the shop as mentioned

in the plaint.

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CR No. 33/2013

15. Before this Court proceeds ahead to consider the above mentioned issue,

it needs to be noted that the controversy sought to be settled by the

Executing Court subsequently, was in fact invited by the Executing Court

itself by confusing itself with the various reports from the Assistant

Commissioner (Rev), Rajouri, Nazir of its own court and Reader of the

District Court Rajouri. Once the report dated 05.09.2011 was submitted

by the Assistant Commissioner (Rev) Rajouri that the boundaries of the

suit property tallied with spot position, the learned Executing Court ought

to have directed the concerned officer to execute the decree but it appears

that the learned Executing Court in compliance to the order dated

03.09.2011 directed the execution of decree strictly in terms of the order

dated 03.09.2011. It needs to be noted that in the objections to the

execution petition filed by the respondents, it was only stated by them that

there is a lot of variation in the description in the suit property, whereas

the fact remains that in the written statement filed by the respondents

before the learned trial court no such objections qua the location as well as

identification of the suit were raised by the respondents and rather it was

the positive case of the respondents that they had constructed the suit shop

on the land comprising survey No. 113 min at village Thanamandi,

obtained by them by virtue of agreement to sell dated 29.06.1976 from

Vishwanath. The defendants/respondents contested the suit all along till

the same was decreed by the learned trial court. Before the 1

st

Appellate

court, an application under Order 41 Rule 27 of the CPC was also filed by

the respondents that the suit shop was constructed in survey No. 383/168

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CR No. 33/2013

and not in survey No. 113 min in village Thanamandi, a stand contrary to

the pleadings in the written statement. The contention of the respondents

was rejected by the 1

st

Appellate Court with observation that it was an

afterthought. The respondents initially laid their claim that they had

constructed the shop on survey No. 113 min, which the respondents could

not establish by any cogent evidence. The description of the suit shop has

been mentioned in the plaint and the respondents never ever disputed the

location as well description of the suit shop either before the Trial Court

or the Appellate Courts. In Ravinder Kaur v. Ashok Kumar, (2003) 8

SCC 289, the Hon‟ble Apex Court has held as under:

20. This opinion of the High Court, in our considered view, is

wholly erroneous for more than one reason. The objection that the

learned Judge referred to in the impugned order raised by the

respondent herein was in regard to the correctness of the site

plan. As noted earlier, this very issue was specifically raised in

the original ejectment proceedings and was held against the

respondents based mainly on the admission of the first

respondent which we have already extracted hereinabove. At

the cost of repetition, we must restate that this question of

identity of the property was never again raised in the appeal

before the Appellate Authority, in the revision before the

revisional authority, namely, the High Court or in the SLP

before this Court. In such circumstances, we fail to understand

how this very issue can be reagitated in the execution

proceeding by the tenants. It is also to be noticed that the

executing court has rightly observed that reopening of this

issue would amount to asking that court to go behind the

decree which is impermissible in law. We must note, this finding

of the executing court is not even noticed by the High Court in the

impugned order. The High Court also did not take into

consideration the reasoning of the Coordinate Bench of the same

High Court in the dismissal order made in CRP No. 5175 of 2002

on 29-10-2002 which while rejecting the similar contention of the

respondents had specifically observed that the attempt of the

tenants was with a view to delay their ejectment. In such a factual

background, we think the impugned judgment is wholly erroneous

having no legal or factual basis to sustain it. We also must notice

that the High Court in the impugned order has made an observation

which in effect, in our opinion, makes the execution proceedings

liable to be dismissed. The said observation is as follows:

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CR No. 33/2013

“In the present case, it is proved on the record that the shop

regarding which the decree-holder was seeking possession during

execution proceedings was not the one regarding which the

ejectment order had been passed by the Rent Controller. Neither

the description had tallied nor the boundaries tallied.”

(emphasis added)

16. The Hon‟ble Supreme Court of India in the case of Satyawati v

Rajinder Singh and anr, (2013) 9 SCC 491, has held as under:

“8. Looking to the facts of the case, in our opinion, the High Court

was not right while confirming the order passed by the

Executing Court for the reason that the Executing Court had

taken into account certain other reports for the purpose of

rejecting the execution proceedings and for coming to the

conclusion that the decree was not executable.

9. Looking to the facts of the case and upon hearing the learned

counsel, we are of the view that the order passed by the

Executing Court dated 16th March, 2009, which has been

confirmed by the High Court is not correct for the reason that

the Executing Court ought not to have considered other factors

and facts which were not forming part of the judgment and the

decree passed in favour of the appellant- plaintiff. Once the

decree was made in favour of the appellant- plaintiff, in

pursuance of the judgment dated 19th January, 1996 delivered

by the District Judge Faridabad, in our opinion, the Executing

Court should not have looked into other reports which had

been submitted to it afterwards.”

(emphasis added)

17. The Hon‟ble Supreme Court of India in the case of Narinder Singh and

others v Kishan Singh (D) th. LRs and others, AIR 2002 SC, 2603, has

held as under:

“14 We have perused relevant records. We have also considered

the contentions raised by learned senior counsel appearing for both

the parties. The Executing Court has given clear and cogent

reasons for not accepting the objections taken by the appellants in

the petition filed under section 47 of the Code of Civil

Procedure. Even so, we have perused the relevant documents on

record to satisfy ourselves that there is no erroneous statement of

fact in the order passed by the Executing Court. We are satisfied

that the order does not suffer from any such error. We are also

satisfied that the approach of the Executing Court in the matter is

legal and proper. It is clear to us that the judgment-debtors are

making a last ditch effort to prevent the decree-holders from

getting full benefit of the decree passed in their favour. As

noted earlier the plea that Karam Singh had no liability to pay

any part of the mortgage debt and his property having been

released from the mortgage in 1956 could not be a part of the

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CR No. 33/2013

suit property in the present case, was neither taken at trial of

the suit nor before the Court in the final decree

proceeding. Though in the order passed on the petition filed

under Order 34 Rule 8 read with Section 151 of the CPC to

make the decree final the fact that Sarbans Singh was declared

an insolvent person in the proceeding under the Provincial

Insolvency Act was noted, no plea that the preliminary decree

did not cover the land of Karam Singh or his share in the suit

land appears to have been taken. In the facts and

circumstances, the Executing Court rightly rejected the

objections raised by the appellants against execution of the

decree. The High Court was, therefore, justified in declining to

interfere with the order of the Executing Court.”

18. The description of the suit shop as pleaded in the plaint, is as under:

North-Shops of Nazir Ahmed Ganai,

South-land of Manzoor Ahmed, father of respondent Nos. 1 to 5 and

husband of respondent No. 6 under the occupation of GREF

Department

East- Land of Manzoor Ahmed under the occupation of GREF

Department

West- Road, Rajouri-Thanamandi to Bafliaz.

19. In the report dated 04.02.2013 relied upon by the learned Executing

Court, the description of the shop on spot has been mentioned as under:

North-shop of Gafoor Ahmed Ganai

South-Path/Road leading to Police Station, Thanamandi,

East-Vacant land measuring 3ft. x 6 ft. owned by State.

West-Road Thanamandi to Poonch.

20. If the description of the shop as mentioned in the plaint is compared with

the description of the shop as mentioned in report dated 04.02.2013, it is

found that the description of the suit shop as well as shop existing on spot

is same, as was initially mentioned by the Assistant Commissioner (Rev),

Rajouri in its report dated 05.09.2011. So far as eastern side is concerned,

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CR No. 33/2013

vacant land has been mentioned in both the plaint and report dated

04.02.2013 but in the plaint, the vacant land has been shown to be that of

Manzoor Ahmed under the possession of GREF, whereas in the report

dated 04.02.2013, the vacant land has been reflected as owned by the

State. Thus, it is evident that the vacant land is mentioned on the eastern

side of the property as described in the plaint as well as in the report.

Similarly, on the southern side in the plaint, the vacant land of Manzoor

Ahmed has been mentioned whereas in the report dated 04.02.2013,

path/road leading to Police Station, Thanamandi has been mentioned. It is

nowhere mentioned in the report dated 04.02.2013 as to whether the path

or road is existing on the State land or has been constructed on the private

land. Even otherwise, it is not at all relevant once the property was

capable of identification on spot in light of description mentioned in the

plaint and in fact, was rightly identified by the Assistant Commissioner

(Rev) in its report dated 05.09.2011, when no objection in respect of the

location as well as identification of the suit property was raised by the

respondents in the written statement. The Executing Court was only

concerned in respect of the identification of the property and once the

northern and western side of the suit property tallied with the position

existing on spot even as per the findings of the Executing Court, more

particularly in view of the existence of the shop of one Nasir Ahmed

Ganai, it could not have been held by the learned Executing Court that the

description of the suit shop did not tally with the position existing on spot.

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CR No. 33/2013

It assumes significance as identification of the property was never

disputed by the respondents in any court.

21. In Pradeep Mehra Vs. Harijivan J. Jethvan Jetjwa, 2023 INSC 958, it

has been observed as under:

11. The multiple stages a civil suit invariably has to go through

before it reaches finality, is to ensure that any error in law is cured

by the higher court. The appellate court, the second appellate court

and the revisional court do not have the same powers, as the

powers of the executing court, which are extremely limited. This

was explained by this Court in Dhurandhar Prasad Singh v. Jai

Prakash University, (2001) 6 SCC 534, in para 24, it had stated

thus:

“24. ………. The exercise of powers under Section 47 of the Code

is microscopic and lies in a very narrow inspection hole. Thus, it is

plain that executing court can allow objection under Section 47

of the Code to the executability of the decree if it is found that the

same is void ab initio and a nullity, apart from the ground that

the decree is not capable of execution under law either because

the same was passed in ignorance of such a provision of law or

the law was promulgated making a decree inexecutable after its

passing.”

13. The reality is that pure civil matters take a long time to be

decided, and regretfully it does not end with a decision, as

execution of a decree is an entirely new phase in the long life of

a civil litigation. The inordinate delay, which is universally

caused throughout India in the execution of a decree, has been

a cause of concern with this Court for several years-----.

(emphasis added)

22. The observation of the Hon‟ble Supreme Court in Rahul S. Shah v

Jinendra Kumar Gandhi and others, (2021) 6 SCC 418, holds good in

the instant case also and the same are reproduced as under:

“24. In respect of execution of a decree, Section 47 of CPC

contemplates adjudication of limited nature of issues relating to

execution i.e., discharge or satisfaction of the decree and is aligned

with the consequential provisions of Order XXI. Section 47 is

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CR No. 33/2013

intended to prevent multiplicity of suits. It simply lays down the

procedure and the form whereby the court reaches a decision. For

the applicability of the section, two essential requisites have to be

kept in mind. Firstly, the question must be the one arising between

the parties and secondly, the dispute relates to the execution,

discharge or satisfaction of the decree. Thus, the objective

of Section 47 is to prevent unwanted litigation and dispose of all

objections as expeditiously as possible.

25. These provisions contemplate that for execution of decrees,

Executing Court must not go beyond the decree. However, there is

steady rise of proceedings akin to a re-trial at the time of

execution causing failure of realisation of fruits of decree and

relief which the party seeks from the courts despite there being

adecree in their favour. Experience has shown that various

objections are filed before the Executing Court and the decree

holder is deprived of the fruits of the litigation and the

judgment debtor, in abuse of process of law, is allowed to

benefit from the subject matter which he is otherwise not

entitled to.

26. The general practice prevailing in the subordinate courts is that

invariably in all execution applications, the Courts first issue show

cause notice asking the judgment debtor as to why the decree

should not be executed as is given under Order XXI Rule 22 for

certain class of cases. However, this is often misconstrued as the

beginning of a new trial. For example, the judgement debtor

sometimes misuses the provisions of Order XXI Rule 2 and Order

XXI Rule 11 to set up an oral plea, which invariably leaves no

option with the Court but to record oral evidence which may be

frivolous. This drags the execution proceedings indefinitely.”

(emphasis added)

23. It appears that the learned Executing Court got swayed by the observation

made by this Court while disposing of the revision petition vide order

dated 03.09.2011 that the warrant of possession be executed strictly in

terms of the plaint. This approach of the learned Executing Court cannot

be countenanced, more particularly when the suit property was properly

described by the petitioner in the plaint and the description/identification

of the property was not disputed by the respondents. With the passage of

time, the surroundings of the suit property may change but once the

description of the property was sufficient for its identification, the learned

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CR No. 33/2013

Executing Court could not have rejected the execution petition by

observing that on two sides, description of the said property did not tally

with the position existing on sport, more particularly when there was

vacant land on eastern side and on the southern side, though the pathway

was shown on the Southern side. It would be apt to take note of the

observations made by the Hon‟ble Apex Court in “Ravinder Kaur v.

Ashok Kumar”, (2003) 8 SCC 289, which are extracted as under:

22. All these facts apart, we notice that nowhere in the petition

the respondent tenants claim to be in possession of any shop

other than Shop No. 3 in regard to which they have suffered an

eviction order. It is not their case that they are also in

possession of some other property in regard to which there is

no eviction order but the landlord is trying to take possession in

these execution proceedings. We have specifically asked the

learned counsel appearing for the respondents that apart from Shop

No. 3 belonging to the appellant, are the respondents in possession

of any part of the property bearing No. EK 172/2 situated at Chowk

Panjeer, Jalandhar. The learned counsel was not able to give any

satisfactory reply to our question which would only mean that the

respondents are not in possession of any other property other than

Shop No. 3 leased out to them in the abovementioned property

belonging to the appellant. That is also why they prayed for

restoration of possession. Therefore, raising a dispute in regard

to the description or identity of the suit schedule property or a

dispute in regard to the boundary of the suit schedule property

is only a bogey to delay the eviction by the abuse of the process

of court. Courts of law should be careful enough to see through

such diabolical plans of the judgment-debtors to deny the

decree-holders the fruits of the decree obtained by them. These

type of errors on the part of the judicial forums only encourage

frivolous and cantankerous litigations causing law's delay and

bringing bad name to the judicial system.

(emphasis added)

24. It was urged by the learned Senior Counsel for the respondents that the

finding on fact has been recorded by the Executing Court, therefore, the

same cannot be re-appreciated by this Court in a revision petition. This

contention of the learned Senior Counsel deserves to be rejected because

whole of the controversy was created by the Executing Court itself and

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then only, it proceeded to determine the same. Though the judgment of

the Hon‟ble Supreme Court of India in “Kishore Kumar Khaitan v.

Praveen Kumar Singh”, (2006) 3 SCC 312, pertains to the scope of the

jurisdiction of the High Court under article 227 of the Constitution of

India to interfere with the finding of the fact recorded by the court subject

to its supervisory jurisdiction but the observations are relevant in the

instant case as well, which are as under:

“13. The jurisdiction under Article 227 of the Constitution may

be restrictive in the sense that it is to be invoked only to correct

errors of jurisdiction. But when a court asks itself a wrong

question or approaches the question in an improper manner,

even if it comes to a finding of fact, the said finding of fact

cannot be said to be one rendered with jurisdiction and it will

still be amenable to correction at the hands of the High Court

under Article 227 of the Constitution. The failure to render the

necessary findings to support its order would also be a

jurisdictional error liable to correction. Here the jurisdiction to

grant an interim mandatory injunction could be exercised on

entering a finding that on the day the order for maintaining the

status quo was passed, the plaintiff was in possession and a day

after the interim order was passed, he was in fact dispossessed. The

interim direction to maintain status quo was an ex parte order.

From the order of the Additional District Court it is not possible to

come to the conclusion that on a proper advertence to the relevant

materials, prima facie clear findings had been rendered by that

court on these aspects. The prima facie infirmities attached to the

letter said to create the tenancy cannot also be ignored, since that

transaction is the foundation of the plaintiff's claim of possession.”

(emphasis added)

25. In view of all what has been said and discussed above, this Court is of the

considered view that the order dated 20.03.2013 passed in File No.

01/Execution titled “Bashir Ahmed Bhat v. Bilal Ahmed & Ors” is not

sustainable in the eyes of law and is, accordingly, set aside. Learned

Executing Court is directed to execute the decree in respect of the suit

shop which is fully described in the plaint and identifiable on spot. The

18

CR No. 33/2013

matter is remanded back. Parties shall appear before the learned Executing

Court on 01.12.2023.

26. The revision petition is disposed of accordingly.

27. Record of the Trial Court as well as Executing Court be sent back

forthwith.

(Rajnesh Oswal)

Judge

JAMMU

10.11.2023

Rakesh PS

Whether the order is speaking: Yes

Whether the order is reportable: Yes