The main legal point established in the judgment is that the nature of the decree determines the applicable provisions for execution, and in this case, the decree for declaration and injunction should have been executed under Order 21 Rule 32, not Rule 35.

JUDGMENT :

1) The petitioners have called into question order dated 06.05.2023 passed by learned Civil Judge (Junior Division), Pulwama (hereinafter referred to as “the Executing Court”), whereby warrant of possession in respect of land measuring 12 kanals and 09 marlas situated at Lethpora Tehsil Pampore, has been issued against the petitioners in an execution petition filed by the respondents seeking execution of decree dated 15.04.1993.

2) It appears that the predecessor-in-interest of the respondents had filed a suit for declaration and possession before the court below seeking a declaration that the plaintiffs are owners of 1/9th share of land measuring 230 kanals and 01 marla along with trees standing thereon situated at Lethpora Tehsil Pampore. A further declaration that the decree dated 05.09.1966 passed by learned Munsiff, Pulwama, in the case titled Nabi Kuchay & others Vs. Mohmad Kuchay & others, is null and void, ineffective and inoperative against the plaintiffs, with a decree of possession to the extent of share of the plaintiffs that was in possession of the defendants, was also sought.

3) On 29.12.1986, a compromise was arrived at between the parties and in support of memo of compromise, statements of the parties were also recorded. It appears that on the day when the compromise was arrived at between the parties, defendant No.1 in the suit, who happened to be the predecessor-in-interest of the petitioners herein, approached the court below stating that he had withdrawn his power of attorney in favour of his advocate, as such, the compromise entered is not acceptable to him. The Court considered the matter and ordered an enquiry into the question whether the compromise had been properly arrived at between the parties. After holding such enquiry, the court below decreed the suit in terms of the compromise vide decree dated 15.04.1993.

4) It seems that the defendants/the predecessors-in-interest of the petitioners herein filed an application under Order 9 Rule 13 of CPC for setting aside the decree but the same was dismissed by the court on 26.11.1996. The said order was assailed in appeal but without any success. The matter was taken to High Court by way of a revision petition and this Court vide order dated 11.09.2001 read with order dated 24.07.2007, directed learned Sub Judge, Pulwama to decide the application of defendants under Oder 9 Rule 13 of CPC after affording opportunity to the parties to lead evidence. The learned Sub Judge, after recording evidence, dismissed the application of the defendants seeking setting aside of the decree dated 15.04.1993, this was done by the learned Sub-Judge vide his order dated 20.10.2018.

5) The petitioners claim that order dated 20.10.2018 passed by the learned Sub Judge, Pulwama, is subject matter of appeal before the Principal District Judge, Pulwama, which fact is not being disputed by the respondents.

6) In the meantime, the respondents/decree holders filed an application before the learned Executing Court seeking execution of decree dated 15.04.1993. The petitioners/judgment debtors objected to the execution of the decree on the grounds that the same is based upon a fraudulent compromise; that the same is subject matter of challenge before the learned Principal District Judge, Pulwama and that the decree holders were never in possession of the suit property.

7) The learned Executing Court, after hearing the parties, passed the impugned order dated 06.05.2023, whereby warrant of possession with respect to land measuring 12 kanals 09 marlas situated at Lethpora Tehsil Pampore has been issued against the petitioners/judgment debtors. It is this order which is under challenge in the present petition.

8) The petitioners have contended that the decree sought to the executed vide the impugned order is a fraudulent decree based upon a compromise that was withdrawn by the predecessor-in-interest of the petitioners. It has been further contended that the decree sought to be executed