The onus of proving willful disobedience of a judgment and decree lies with the decree-holder, and the purpose of appointing a Local Commissioner is not to collect evidence but to obtain evidence that can only be had on the spot.

Daya Chaudhary, J.

Petitioner-Prem Chand filed a suit for permanent injunction restraining the defendant from interfering, encroaching upon, dispossessing, laying rasta, constructing Gali over the land in dispute before the trial Court. Suit was decreed in favour of the petitioner vide judgment and decree dated 16.02.2015. Thereafter, an application was moved by the petitioner-decree holder under Order 21, Rule 32 read with Section 151 CPC for taking strict legal action against judgment debtor/respondent for causing willful disobedience of decree dated 16.02.2015 passed against him by attaching the property of the judgment debtor. Said application is still pending. After judgment and decree passed in the civil suit, execution petition was filed by the plaintiff-petitioner and during pendency of the execution, an application was moved for appointment of Local Commissioner. However, the application moved by the petitioner under Order 26, Rule 9 CPC was dismissed vide order dated 10.11.2016, which is subject matter of challenge in the present revision petition.

2. Learned counsel for the petitioner submits that in spite of passing of judgment and decree, the respondent is still indulging in causing willful breach and disobedience against the judgment passed by the trial Court. Learned counsel further submits that for taking final decision of the dispute between the parties, the appointment of the Local Commissioner is necessary for the demarcation of the decretal land and to report as to who is in actual and factual possession and whether the passage falls within the decretal land or outside the land. In the reply filed to the application, it was mentioned that the applicant has concealed material facts that in civil suit filed by Sukhdevi, the mother of the respondent, against the applicant-petitioner Prem Chand, the Local Commissioner was appointed with the consent of both the parties. It was mentioned in the report of Local Commissioner that Sukhdevi was owner in possession of Khasra No. 3017/2970/1794 measuring 11 marlas. It was also mentioned in the reply that report of Local Commissioner was already on record and the plaintiff-petitioner had already cross-examined the Local Commissioner. It was also mentioned in the reply that the appointment of Local Commissioner at this stage is not necessary. The application moved by the petitioner for appointment of Local Commissioner was dismissed on the ground that the case is fixed for evidence of decree-holder and an issue has already been framed to the effect as to whether JD has caused willful disobedience of judgment and decree dated 16.02.2015.

3. Heard arguments of learned counsel for the petitioner and have also perused the impugned order as well as other documents available on the file.

4. The facts relating to filing of suit and decretal of suit by way of judgment and decree are not disputed. It is also not disputed that the petitioner has already filed application under Order 21, Rule 32 CPC for taking action against judgment debtor for causing willful breach and disobedience of decree dated 16.02.2015. An application was also filed for appointment of Local Commissioner for demarcation of the suit land, which has been dismissed. The purpose of filing application for appointment of Local Commissioner is to verify on the basis of report of Local Commissioner the factual and actual position of land in dispute. In the execution petition, both the decree holder and judgment debtor are there and the case is fixed for evidence of decree holder. An issue has also been framed as to whether judgment debtor had caused willful disobedience of judgment and decree and now it is for the decree holder to prove that the judgment debtor had caused willful disobedience by carving out the passage from the suit land or not. The purpose of appointment of Local Commissioner is not to create evidence by either party but the decree holder has to stand on his own legs and for proving breach of