IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.R. No. 67/2019 Decided on: 7.11.2019 Ramesh Kumar …Petitioner Versus o Anuj Kumar and anr. ....Respondents Coram The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting ?¹ No For the petitioner: Mr. Ashok K. Tyagi, Advocate.

For the respondents: Mr. Karan Singh Kanwar, Advocate.

Tarlok Singh Chauhan, Judge (oral)

Aggrieved by the order, dated 13.5.2019 passed by the learned Civil Judge, Nahan, District Sirmaur, whereby she dismissed the application filed by the petitioner/decree holder under the provisions of Order 21 Rule 32 CPC as being not maintainable against the legal representatives of original defendant/judgment debtor, has filed the instant petition.

1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes

2 It would be noticed that the decree holder has filed the execution petition against the allegePd legal representatives of original defendant complaining of violation of the decree.

3 The learned executing court on 6.5.2016 framed the following issues:-

1. Whether the present execution petition is not legally maintainable, as alleged? OP Objectors.

2. Whether the DH has no locus standi to file the present petition? OP Objectors.

3. Whether the present petition is based on dishonesty Cand mala fide of the DH with a view to forcibly occupy the suit property i.e. shops, as alleged? OP Objectors.

4. Relief.

g4 After recording the evidence and evaluating the isame, the learned executing court vide impugned order dismissed the execution petition as being not maintainable against the legal representatives of original defendant, as is evident from paras 19 and 21 of the impugned order, relevant portion whereof is extracted below:-

19. ………… Even for the sake of argument, it is believed that the objectors have caused any sort of interference over the suit land then in that case it was not the proper forum to file present execution petition regarding the judgment to which they were not even the party rather the decree holder had a right as a new cause of action has arisen for which he could have filed a fresh civil suit and can in no manner by filing the present execution petition U/O 21 R 3.2 CPC have the relief under the same. As far as the plea that the objector have interfered over the suit land and have violated the judgment/decree bfy putting their lock over the shops existing over the suit land then I am of the considered view that if decree holder had any grievances against tthe objectors regarding any alleged interference then the same can be put forth in a fresh civil suit and not by filing any contempt of judgment decreoe against those people who are not even the party to the same.

20. Coming to the petition in hand, as discussed above the present petition is neither maintainable against the present respondents/objectors nor the decree holder- applicant has any locus standi to file the present execution petition. Hence, issue No. 1 to 3 are decided against the D.H.

5 To say the least, the findings recorded by the learned executing court are perverse and contrary to the consistent law on the subject.

6 This Court in Tara Singh vs. Govind Singh (deceased) through his LRs, Latest HLJ 2016(HP) 1627 while dealing with similar issue held the execution petition to be maintainable against the legal representatives of the defendants by observing as under:- P

8. At the earliest point of time is the judgment rendered by the Bombay High Court in Amritlal Vadilal vs. Kantilal Lalbhai, AIR 1931 Bombay 280 wherein it was held that the decree for injunction does not run with the land and in thoe absence of any statutory provision, such a decree cannot be enforced against the surviving membters of a joint family or against a purchaser from ar judgment-debtor. But where the sons of the judgment debtor are brought on record as his legal representatives under section 50 of the Code the decree can be executed against them and so also against the transferees