The main legal point established is that while the executing court has the authority to appoint a local commissioner in execution proceedings, such appointment should be made after affording the parties an opportunity to lead evidence in support of their claims.

JUDGMENT

Sandeep Sharma, J. - Being aggrieved and dissatisfied with the order dated 14.11.2018 passed by learned Senior Civil Judge, Hamirpur, Himachal Pradesh in CMA No Exe. No. 20 of 2015, whereby an application under Order 26 Rule 9 CPC, having been filed by the respondent-DH came to be allowed, petitioner-JD, has approached this Court in the instant proceedings with a prayer to set-aside the aforesaid impugned order.

2. Precisely, the facts of the case as emerge from the record are that the DH filed a Civil suit bearing No.109 of 2010 for permanent prohibitory injunction in the Court of learned Civil Judge (Senior Division), Hamirpur, Himachal Pradesh, which came to be allowed vide judgment and decree dated 14.5.2012 (Annexure P-1). Vide aforesaid judgment and decree passed by learned court below, petitioner-JD came to be restrained from changing the nature of the suit land by raising construction, until the suit land is partitioned in the process of law by metes and bounds, but relief of mandatory injunction was declined.

3. It is not in dispute that aforesaid judgment and decree passed by learned Court below has attained finality because no appeal whatsoever came to be filed at the behest of the petitioner-JD. Since despite there being restraint order issued against the petitioner- JD, he attempted to change the nature of the suit land by raising construction, DH filed an application under Order XXI Rule 32 and Section 151 CPC for execution of injunction decree dated 14.5.2012 in the Court of learned Senior Civil Judge, Hamirpur, District Hamirpur, Himachal Pradesh. DH averred in the application that JD on 16.5.2015 started digging the suit land with the JCB and also stacked building material with a view to raise construction over the suit land.

4. Jd in reply to the aforesaid application denied the factum with regard to construction, if any, on the suit land by him after passing of the judgment and decree, sought to be executed in the instant proceedings. JD claimed that the construction raised by him is not over the suit land, but the same is on Khasra No.274 and 272. J.D claimed that there is already one cowshed stands constructed over Abadi since the time of his ancestors and at present no construction is being raised by him over the suit land.

5. In the aforesaid proceedings, DH filed an application under Order 26 Rule 9 CPC for appointment of revenue expert to demarcate the suit land. DH averred in the application that the respondents were injuncted from changing the nature of the suit land comprised Khasra No.275, measuring 00-01-93 hectares, but they have constructed the building over the suit land forcibly. JD opposed the aforesaid prayer made on behalf of the DH, but learned court below allowed the application and appointed Sh. Ashok Kumar, Naib Tehsil (Retired) as Local Commissioner to demarcate the suit land. In the aforesaid background, JD has approached this Court in the instant proceedings.

6. I have heard learned counsel for the parties and perused the record. Precisely, the question which falls for consideration of this Court in the instant proceedings is "whether a local commissioner can be appointed by a court, while exercising power under Order XXVI, rule 9 CPC, in execution proceedings filed under Order XXI, rule 32 CPC."

7. Mr. Ajay Sharma, learned Senior Advocate arguing on behalf of the petitioner, while referring to the judgment dated 8.9.2016 passed by a Coordinate Bench of this Court, Ved Parkash vs. Mool Raj Padha, contended that no local commissioner could have been appointed by the court below while exercising power under Order XXVI, rule 9 CPC, in execution proceedings filed under Order XXI, rule 32cpc, and as such, impugned order being patently illegal, deserves to be set aside.

8. Per contra, Mr. Vinod Thakur, learned counsel appearing for the respondents, while referring to the judgment passed in Som Nath vs. Gurdev,2017 3 HimLR 1413 Civil Revision No. 69 of 2015 (decided on 8.5.2017) an