P.K.LOHRA,J. - (1.) Petitioners-defendants have preferred this writ petition to challenge the impugned order dated 14.10.2015 (Annex.10) passed by the learned Civil Judge (Sr.Division)-cum-Addl.Chief Judicial Magistrate, Phalodi (for short 'the Executing Court') in Execution Case No.2/2012. By the order impugned, the learned Executing Court has issued necessary directions to comply with the decree which was passed against the petitioners for removal of encroachment at the place marked as 'O' to 'P' in the map (Ex.1).
(2.) The bare necessary facts are that respondents-plaintiffs filed a civil suit for permanent injunction and removal of encroachment against the petitioners-defendants. In the plaint, it was specifically pleaded that petitioners have encroached over their way by erecting a wall and the offending construction of wall was shown in the map as 'O' to 'P'. It is also averred that the said way is for ingress and egress of public at large and, therefore, this obstruction is liable to be removed and the encroachments made therein by the petitioners be immediately removed. At the threshold, the suit was decreed by the learned Trial Court on 06.04.2009 and necessary injunction order was issued for removal of obstruction at the point 'O' to 'P'. The judgment aforesaid was assailed by the petitioners and thereupon, the learned Additional District Judge, Phalodi set aside the judgment on 29.08.2009. The aforesaid judgment and decree of the Appellate Court is challenged by the respondents-plaintiffs by preferring S.B.Civil Second Appeal No.254/2009. The second appeal was allowed and the judgment of the first Appellate Court was set aside by judgment dated 30.03.2011 and the matter was remanded back to the learned first Appellate Court. After remand, the learned first Appellate Court dismissed the first appeal of the petitioners by its judgment and decree dated 11.08.2011. The said verdict of the first Appellate Court was again challenged by the petitioners before this Court by preferring second appeal and the same was dismissed on 16.04.2012. A Special Leave Petition preferred by the petitioners against the said judgment of this Court was also dismissed by the Hon'ble Apex Court.
(3.) After the decree attained finality, the respondents-plaintiffs put it to execution. In the execution petition, at the behest of the petitioners, objections were submitted under Section 47 CPC precisely on the ground that the alleged encroachment at the point 'O' and 'P' is not clear from the decree as no measurements are shown and, therefore, the decree cannot be executed. The learned Executing Court by its order dated 04.07.2012 rejected the objections of the petitioners. Against the said order, petitioners preferred a revision petition before this Court which was registered as S.B. Civil Revision Petition No.122/2012. This Court disposed of the revision petition by giving liberty to the petitioners to construct their own boundary wall on their pattasud land for which patta No.56 dated 22.01.1990 and patta No.349 and 359 have been issued in their favour in the year 1985-86. However, subject to the condition that between the two side plots on the northern and southern side of the land as shown in Ex.1, they will have to leave the passage of the width, which is in front of said stone gate (HINDI) constructed by them and further they were directed not to encroach upon the said land of passage (Point 'O' to 'P'). The relevant observations of this Court in para 6 of the verdict reads as under:- "6. Having heard the learned counsel for the parties, this Court is of the opinion that the present revision petition can be disposed of by directing that the petitioners/objectors, Ratan Singh and his wife Smt. Sayar Kanwar will be free construct their own boundary wall on their "Pattasud" land for which Patta No.56 dated 22.01.1990 and Patta No.349 and 359 have been issued in their favour in the year 1985-86 but in between the two sides plots, on the northern and southern side of the land as shown in Exhibit-1, they will have to leave the passage of the width, which is in front of said stone gate (Hindi) constructed by them and under the garb of said "Pattasud" land, they will not be entitled to encroach on the said land of passage (Point "O" to "P"). The learned court below will ensure that if any construction of pillar/s etc. is raised by the defendants/judgment debtors, Ratan Singh and his wife Smt. Sayar Kanwar, on the said passage/way in front of said stone gate, which is marked as "O" to "P" in the said Map (Ex.1), the same is to be removed by them within fifteen days from today, and if they do not remove, then the same be removed through Sale Amin/Municipal authorities at the cost of petitioners, and a report of the same supported by the latest photographs of the site in question with such removal of encroachment be also sent/reported to this Court.";