Point of Law: Unreasonable delay in execution of a decree - Executing Court has to decide only questions with regard to execution, discharge and satisfaction of decree and cannot go behind decree for purposes of executing the same.

JUDGMENT :

1. The petitioner/decree holder has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India read with Section 104 of the Constitution of Jammu & Kashmir so as to assail the order dated 11.07.2019 passed by the Executing Court directing the SDM, Chadoora, to submit report in respect of certain points and restraining the parties from changing the nature of the suit property or from excavating any soil or clay from it till the report is so filed by the SDM Chadoora.

2. The basic contention of learned counsel for the petitioner is that fresh report from SDM is not necessary at all as the Executing Court cannot collect evidence for the purposes of executing the decree and has to rely upon the documents on record which includes a report of the revenue submitted during trial. Secondly, the Executing Court cannot go behind the decree to record its own finding. It has acted without jurisdiction in passing the interim direction which otherwise have the effect of nullifying the decree.

3. The facts of the case reveal that the petitioner/ decree holder instituted a civil suit in respect of the land under his ownership and possession measuring 19 kanals and 4 marlas covered by survey no.908/1 and 1302 situate at Nowbugh Tehsildar Chadoora District Budgam. The suit was decreed vide judgment and order dated 28.12.2017 which is final and conclusive. The petitioner put the aforesaid decree in execution wherein after considering the objections of the judgment debtors, the Executing Court vide order dated 23.04.2019 allowed the execution and the judgment debtors were directed not to cause any interference in the lawful ownership, possession, occupation and enjoyment of the land by the petitioner and it was further provided that if any interference is caused, the judgment debtors would be put in civil imprisonment.

4. It appears that on account of continuous violation of the injunction decree, the SHO P/S Chadoora detained the judgment debtors in civil prison for about four days. Accordingly, judgment debtors initiated proceedings for contempt against the SHO P/S Chadoora, wherein the present order impugned herein this petition came to be passed.

5. The submission of learned counsel for the respondents/ judgment debtors is that the petitioner in the garb of the decree in question is encroaching upon the kahcharai land and is excavating the same against the interest of the entire community. He submits that the decree of the trial court restrains the judgment debtors from causing interference in the lawful possession and ownership of the decree holder over the suit property measuring 19 kanals 4 marlas of survey no.908/1 and 1302 situate at Village Nowbugh but it has been clarified that the said decree would not have any impact on any grazing or kahcharai land. In other words what he is trying to submit is that the judgment debtors are restraining the petitioner only from digging and excavating the grazing/ kahcharai land and, as such, the Executing Court is justified in asking for a report from the SDM. The SHO, on the other hand, without distinguishing the above aspect unnecessarily detained the judgment debtors.

6. The Jammu & Kashmir Kachcharai Act, Svt. 2011, defines “kahcharai” means revenue derived or derivable from any duty, fee, tax, fine or penalty imposed under the provisions of this Act or of other law for the time being in force, relating to the levy of grazing or browsing dues.

7. In simple words, village land used for grazing purposes is generally called Kahcharai land and it is for the benefit of the entire village and the people connected with grazing activity. It is not the proprietary land or the land of any private individual.

8. It is admitted on record that the injunction decree passed by the trial court is final and conclusive. In execution proceedings, the judgment debtors have not filed any objections allegedly under Section 47 CPC so as to object its execution. The Executing Cou