An execution petition cannot be maintained if the underlying judgment was conditional upon a pending appeal that was subsequently decided against the petitioner, thereby removing the executable cause of action.

Ajay Mohan Goel, Judge (Oral).

By way of this execution petition, the petitioner is seeking the execution of the judgment passed in her favour in CWP HNo. 7785 of 2011, titled Sheela Devi vs. State of HP and Others, decided on 25th May 2012, which writ petition was disposed of by the Hon’ble Co-ordinate Bench in the following terms:-

“It is contended that the dispute involved in this writ petition has already been determined by a learned Single Judge of this Court in CWP No. 60 of 2006, titled as Jagdev Katoch versus State of Himachal Pradesh & others, decided on 20.06.2008.

2. At this stage, Mr. J.K. Verma, learned Deputy Advocate General, stated at the Bar that they have assailed thesaid decision by the medium of LPA No. 23 of 2009, which is still pending before this Court. His statement is taken on record.

3. In the given circumstances, I deem it proper to dispose of this writ petition in light of the judgment (supra), shall abide by the decision to be made by this Court in LPA No. 23 of 2009.

4. The writ petition is d isposed of accordingly alongwith all pending applications.”

Learned Advocate General has informed the court that a perusal of the judgment passed in favour of the petitioner would demonstratCe that the Hon’ble Co-ordinate Bench was pleased to observe that as the petitioner was relying upon the judgment passed in CWP 60 of 2006, titled Jagdev Katoch vs. State of HP and Others and a Letters Patent Appeal was pending against the said adjudication, therefore, the writ of the petitioner shall abide by the decision made in the Letters Patent Appeal No. 23 of 2009.

Learned Advocate General thereafter, by referring to the judgment passed by the Hon’ble Division Bench in LPA Number 23 of 2009 and other connected matters, took the Court through Para- 7 thereof and submitted that the Hon’ble Division Bench was pleased to hold in Para 7 that LPA Number 23 of 2009 and other connected LPAs stood allowed. Learned Advocate General submitted that as the judgment passed in the case of the petitioner was to abide by the judgment in the LPA, and as in the LPA the Hon’ble Division Bench was pleased to set aside thfe judgment passed by the Learned Single Judge in Jagdev Katoch’s case, there is neither any verdict in favor of the petitioner nor there is any executable cause in favor of the petitioner.

Faced with this situation, Learned Counsel for the petitioner submits that the petitioner be allowed to withdraw these proceedings at this stage, with liberty to approach the court afresh by way of appropriate proceedings in case the need so arises.

iThough this is opposed by the learned Advocate General, but the proceedings are allowed to be withdrawn with liberty to avail such legal remedies as available to the petitioner in accordance with law, subject to all just exceptions.