Executing court cannot revisit decree executability on identification grounds adjudicated earlier; must enforce as stands, applying restitution for demolished possession via reconstruction.

JUDGMENT :

Satyen Vaidya, Judge:

The petitioners/JDs have invoked the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure (for short, “CPC”) against the order dated 05.04.2024, passed by the learned Civil Judge (Senior Division), Kasauli, District Solan (H.P.), in Execution Petition No. 1348 of 2019, CNR No. HP S0100003592019.

2. Facts in brief are that the respondent/DH was a tenant in a shop situated in Mauza Dhangyar, P.O. Parwanoo, Tehsil Kasauli, District Solan, H.P., measuring 2.28 x 3.19 square meters (for short, “the shop”). The petitioners/JDs were the owners of the shop.

3. The respondent/DH filed a suit bearing No. 89/1/2008 against the petitioners/JDs in the Court of the learned Civil Judge (Senior Division), Kasauli, District Solan (H.P.). The plaint was instituted on 27.11.2008. In the said suit, a decree was sought to the effect that the respondent/DH be not dispossessed from the shop without due process of law. The suit was filed by pleading various instances of illegal interference by the petitioners/JDs in the lawful possession of the respondent/DH over the shop.

4. During the pendency of the suit, proceedings under Section 133 of the CrPC were initiated before the Executive Magistrate at the instance of the petitioners/JDs with respect to the shop. In pursuance of the order passed by the Executive Magistrate, the shop was demolished on 02.09.2009. Later, the order passed by the Executive Magistrate was set aside by the higher Court; however, by that time the shop had already been demolished.

5. The respondent/DH amended the suit and challenged the illegal dispossession. A prayer for possession was made.

6. Civil Suit No. 89/1/2008 was decreed in favour of the respondent/DH by the learned Senior Civil Judge, Kasauli, District Solan (H.P.), vide judgment dated 18.08.2017. The following relief was granted in favour of the respondent/DH:—

“Relief:- 19. In the light of my findings on the above decided issues supra, the suit of the plaintiff is decreed for vacant possession of shop situated on khasra No. 790 and 790/1 situated in mauza Dangyar, P.O. Parwanoo, Tehsil Kasauli, District Solan which is also depicted in the sale deed Ex. PY measuring 2.28x3.19 square meters and which is also depicted in the site plan/map Ex.PR1. It is clarified for the identification of the shop, the sale deed Ex.PY and the map Ex.PR1 be taken into consideration. The sale deed No.160 dated 22.03.2010 shall bear no effect on the right of the plaintiff as is hit by lis pendence and Section 52 of TPA Act. The suit stands decreed. Decree sheet be prepared accordingly. File, after due completion, be consigned to the record room.”

7. The aforesaid judgment has attained finality. Civil Appeal No. 35-S/13 of 2017 filed by the petitioners/JDs before the learned District Judge, Solan (H.P.), was dismissed on 30.10.2019. The Regular Second Appeal No. 571 of 2019, filed by the petitioners/JDs before this Court against the judgment and decree passed by the learned District Judge, Solan (H.P.), has also been dismissed on 18.09.2023.

8. In the execution petition filed by the respondent/DH, the petitioners/JDs preferred objections under Section 47 of the CPC. The executability of the decree was challenged primarily on the ground that the location of the suit property was not identifiable. It was alleged that since there was no specific Tatima of the demolished shop, the decree for vacant possession of the shop was vague, erroneous, and inexecutable. It was further all