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