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Sri Anil Kumar v. Sri Jawahar Singh And Another - WRIT - A No. 18299 of 2006 [2007] RD-AH 2794 (20 February 2007)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Court No.20

Civil Misc. Writ Petition No. 18299 of 2006

Anil Kumar  


Jawahar Singh and another  

Hon. Sanjay Misra, J.

Heard Sri K.K.Arora, learned counsel for the petitioner.

Learned counsel for the respondents  is not present.

Counter affidavit and rejoinder affidavit have been exchanged.

By means of impugned order the executing court has held that since the decree stood executed/satisfied  in view of Dakhalnama executed by the  court Amin, the petitioner could not maintain the execution application inasmuch as the decree having been  satisfied the execution application could not be executed a second time for any subsequent cause of action.

Learned counsel for the petitioner contends that the fact was that on 31.1.2005 the Amin along with the petitioner executed Dakhalnama and obtained signature of the brother of the tenant. According to the petitioner, on the night of 31.5.2005 and 1.6.2005 the respondent tenant forcibly entered the  premises in question again.  The application for execution was therefore pressed by the petitioner and the aforesaid fact was brought to  the notice of the court by means of an  application.  The court was of the view that since the decree has been executed by the court Amin therefore a subsequent  application  for execution was not maintainable. While rejecting the aforesaid application the executing court  has concluded  that once the decree stood  satisfied , the execution application for a  subsequent violation of the decree  could not be maintainable and the aggrieved party could avail his remedy in accordance with law.


Learned counsel for the petitioner has contended that  the fact   was brought to the notice of the court that the decree  has been executed on 31.5.2005 obtaining the signature of the brother of the tenant, however, the Dakhalnama executed  by the court amin that possession has been taken by the petitioner was not finally accepted by the court and no satisfaction of the decree was recorded by the court, therefore, the petitioner moved an  application with affidavit when  in the night of 31.5.2005 and 1.6.2005 the respondent tenant forcibly entered the premises in question. It is only when  the decree is satisfied and recorded by the court and there is subsequent violation  by the judgment debtor then  the decree holder would have to  avail his remedy in accordance with law  and the execution could not continue after recording satisfaction of the decree.

In the present case, from a  perusal of the impugned order it appears that decree was satisfied and the court has proceeded to record the same and therefore  the executing court found that the decree holder could not maintain the execution proceeding any further. However, from a perusal of the annexure-4 to the writ petition  it is quite apparent that the tenant has denied the execution of  Dakhalnama prepared by the court amin. When the judgment debtor is disputing that the execution has not been done by the amin and he is still in possession then  it was necessary  for the executing court to consider the aforesaid application on its merits. If the executing court found that the decree  was never executed then the proceedings could not be stopped. The court was therefore required to determine the questions arising between the parties to the suit relating to the execution, discharge or satisfaction of the decree. It was also necessary for the court to decide whether the brother of the respondent tenant  was a representative of the judgment debtor and if not then his


signature on the Dakhalnama could amount to satisfaction of the decree. Such relevant questions which arose between the parties have not been addressed nor decided  by the executing court. The impugned order therefore cannot be upheld.

The writ petition is allowed and the  impugned order is set aside.  The matter is sent back to the executing court to consider the aforesaid defence taken by the tenant  whereby he has denied the dakhalnama executed in favour of the petitioner. It is expected that since the matter is very old the executing court will proceed in accordance with law as expeditiously as possible. No order is passed as to costs.




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