IMPORTANT POINT
Executing Court cannot dismiss execution case on technical grounds.

JUDGMENT

Rajnesh Oswal, J.—”As long back as in 1872 (when the CPC of 1859 was in operation), it was observed by the Privy Council that, “the difficulties of a litigant in India begin when he has obtained a decree”. The situation, we are afraid, is no better even today. These observations have been made by the Hon’ble Supreme Court of India in the year 2023 in case titled “Pradeed Mehra v. Harijivan J. Mehta”, 2023 INSC 958. In the present case, the petitioner, who at the time of filing of this petition was 72 years of age (as mentioned in the petition), started his litigious journey in the year 1997 when he was 56 years of age but has not been able to taste the fruits of the decree earned by him in the year 2003 and upheld by the 1st Appellate Court as well as by this Court, till date when he has attained the age of 82 years.

2. The petitioner had filed a suit for recovery of possession of one single storeyed shop situated at Village Thanamandi, which as per the case set up by the petitioner had been illegally occupied by the respondents. It was pleaded in the plaint by the petitioner that he had constructed a shop measuring 16 x11 on the part of the land measuring one marla comprising survey No. 113 min, situated at village, Thanamandi, which was purchased by him from one Sohan Lal by virtue of a sale deed dated 08.08.1996. The petitioner had earlier filed a suit for permanent prohibitory injunction against the respondents but during the pendency of the said suit, the respondents forcibly occupied the shop and placed the shutter on the shop. The petitioner thereafter withdrew the suit as the same had been rendered infructuous.

3. The respondents objected to the suit preferred by the petitioner by filing a written statement, thereby pleading that Sohan Lal had no right or concern with the land comprising survey No. 113 min, measuring 01 kanal,l5 marlas and the whole of the land had been in possession of respondent Nos. 1 and 2 since 1969-70 by virtue of an affidavit and agreement to sell dated 29.06.1976 executed by the original owner of the land, namely, Vishwa Nath.

4. After the trial of the suit, the learned Sub Judge, Rajouri (hereinafter to be referred as the “Trial Court”) decreed the suit vide decree dated 30.09.2003 in favour of the plaintiff, petitioner herein. The decree was assailed by the respondent Nos. 1and 2 by way of an appeal before the learned Principal District Judge, Rajouri (hereinafter to be referred as the “1st Appellate Court”) and the 1st Appellate Court vide its judgment dated 20.04.2009 dismissed the said Civil 1st Appeal. It needs to be mentioned here that while the appeal was pending before the learned 1stAppellate Court, an application was filed by the respondent Nos. 1 & 2/appellants therein under Order 41 Rule 27 of the Code of Civil Procedure (CPC) for placing on record the report of the Commissioner that the shop was constructed over the land comprising survey No. 168/383 and not survey No. 113 min and the said application was dismissed by the learned 1st Appellate Court. Thereafter, the respondent Nos. 1 and 2 preferred the Civil 2nd Appeal and that too was dismissed by this Court vide its judgment dated 17.11.2009.

5. The petitioner filed a petition for execution of the decree dated 30.09.2003 passed by the learned trial court but the same was dismissed by the learned JMIC (Munsiff), Thanamandi (hereinafter referred to as “the Executing Court”) vide its order dated 20.03.2013 on the ground that the description/schedule of the shop existing on spot did not tally fully with the schedule mentioned in the plaint, as it tallied only on two sides i.e. western and northern side of the shop, which was identified by the petitioner.

6. The petitioner has filed the present petition thereby impugning the order dated 20.03.2013 passed by the learned Executing Court on the grounds that in the order impugned, the learned Executing Court has laid much emphasis by pointing out some differences qua the exact