HIGH COURT OF HIMACHAL PRADESH
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Vyom Prakash, J. -
(1.) This Execution Second Appeal has been filed by Brij Lal against the order of the District Judge, Hamirpur dated 13th June, 1975, whereby the appeal of Brij Lal was dismissed and the order, dated 30th October, 1973, passed by the Sub- Judge, Hamirpur dismissing the objections of Brij Lal judgment-debtor, was affirmed.
(2.) The brief facts of the case are that one Waziru Ram filed a suit against Brij Lal for a declaration and injunction with respect to khasra No. 604, measuring 8 marlas in Tika Gaura Manjhala, Tehsil Hamirpur. Out of this 8 marlas. 6 marlas was banjar qadim and 2 marlas was shown as a shop. The suit was for a declaration that Waziru Ram plaintiff was owner in possession of the disputed property and that Brij Lal defendant had no right to raise any construction, etc. on this property and also for an injunction restraining him from interfering in any manner with this property. The suit was also for possession of the land upon which the defendant is found to be in possession by removal of the structures from the disputed land at the time of the decision of the suit. This suit was filed in the year 1963 and was decreed by the Sub Judge, Hamirpur, on 31st August, 1966. According to the decree-sheet, Exhibit DH-2, it was ordered that "on payment of Rs. 5130-78 paise to the defendant or on its deposit for payment, the plaintiff shall become the absolute owner of the disputed shop and to two marlas of land belonging to the defendant, failing payment or deposit within two months from today (i.e. 31-8-196(6) the suit shall stand dismissed in accordance with the agreement between the parties". The parties were left to bear their own costs. The compromise between the parties was arrived at on 21-12-1965 vide Ex. DH-1. By virtue of this compromise a local commissioner was appointed to assess the market value of the shop. After this assessment of the market value by the local commissioner, which was confirmed by the court, the decree, was passed on 31-8-1966 vide Ex. DH-2. It is also admitted by both the parties that the decree and the compromise were got registered by the plaintiff on 27th May. 1968 vide Ex DH
(3.) It is also admitted by the parties that a sum of Rs. 5130-78 paise for payment to Brij Lal defendant was deposited by the plaintiff within the prescribed period as ordered in the decree-sheeet, dated 31-8-1966. After the passing of the decree and the deposit of the amount of Rs. 5130-76 paise, the decree-holder seems to have filed an execution petition, being No. 214 of 1966, but the same appears to have been dismissed as unsatisfied on 5-10-1967. Thereafter the decree-holder Waziru Ram filed another execution petition, being No. 30 of 1968 out of which the present appeal has arisen. Notice of this application was given to the judgment-debtor (Brij Lal) who took various objections regarding the executability of the decree and upon these objections of the judgment-debtor, the following issues were framed:
"1. Whether any decree for possession of the property in dispute has been passed in favour of the decree-holder? 2. If so, whether the same is not executable? 3. Whether any previous order passed by the Court operates as a res judicata on issues 1 and 2?;
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