IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No.579 of 2022 Decided on 27th October, 2025 Rajender Kumar …Petitioner Versus Rakesh Kumar and others …Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge 1Whether approved for reporting? For the petitioner : Mr. T.S. Chauhan, Senior Advocate, with Mr. Surya Chauhan, Advocate. For the respondents : M/s Dinesh Kumar Sharma and Yoginder Paul, Advocates. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioner has prayed for the following relief:- “It is, therefore, respectfully prayed that this petition may kindly be allowed and impugned order contained in Annexure P-11 may kindly be quashed and set side and consequently allowing the application filed by the petitioner under Section 151 of the CPC for the dismissal of the petition and consequently dismissing the execution petition filed by the respondent.” 2 2. Having heard learned counsel for the parties and having gone through the impugned order, this Court does not find any perversity in the order. 3. The relevant portion of the impugned order reads as under:- “I have heard the learned counsels of the parties and have gone through the record carefully. Perusal of the file shows that the judgment and decree dated 02-03-2009 was passed against the defendants, namely, Rajinder Kumar. Jeet Ram and Sarwan Kumar. Thereafter the defendants preferred an appeal against the said judgment and decree which was decided vide order dated 13-04-2011 by the then learned Additional District Judge, Ghumarwin and it is pertinent to mention that in the memo of the parties names of the appellants/defendants were written as Rajinder Kumar S/o late Sh. Sarwan and Jeet Ram S/o late Sh. Sarwan which clearly means that at the stage of the appeal, this fact was already in the knowledge of the learned Appellate Court that both Rajinder Kumar and Jeet Ram, who were the legal heirs of late Sh. Sarwan were already on record and if at all there was any other legal hell he would have also been brought on the record during the course of the appeal, however, the judgment and decree which was passed on 02-03-2009 was upheld and appeal was dismissed. Now after a span of 8 years, the present application has been filed for stopping the execution proceedings which clearly means that the application has been filed just to delay the proceedings in the present matter. It is worthwhile to mention that vide judgment and decree dated 02- 03-2009, preliminary decree of partition was passed by this court and the land was required to be partitioned as per said order thereafter. The present execution was filed on 17-04-2012 which means 3 that it was passed after the appeal was decided on 13-04-2011. If there was any such contention of the JDs, then objections in that regard could have been taken at the time of the appeal or even thereafter once the service of the Jds was completed before the court, however, no such objections were taken by the Jds at that particular time and only after reasonable delay the present application has been filed for stopping the proceedings. The grounds for stopping the proceedings as stated in the pleadings do not appear to be plausible for the reason that this plea was available to the Jds at the time of the appeal, but as I have already discussed above, even during the time of appeal, the fact of death of JD Sarwan Kumar was very much within the knowledge of the court and that is why same was reflected in the memo of the parties. Thus, at this stage, this ground is not available to the Jds that the decree was passed against a dead person since the order was upheld by the learned Appellate Court after taking into account the change of circumstances as such. The learned counsel for the Jds has relied upon case of Gurnam Singh (D) LRs and others vs. Gurbachan Kaur, civil Appeal No.5671 of 2017 decided on 27-04-2017, however, the facts in the present case are different from the facts so mentioned in the aforesaid judgment so quoted by the learned counsel for the Jds as the matter of death of defendant no.3 Sarwan Kumar was already on record as mentioned in the memorandum of the parties in the present case and in the present case, it cannot be stated that the decree has been passed against a dead person when the legal heirs of said deceased Sarwan Kumar were already on record during the appeal proceedings. Accordingly, the present application being devoid of merits is dismissed. Application stands disposed off. After due completion it be lagged with the main case file.” 4. Learned counsel for the petitioner could not demonstrate that the findings returned in the said para of the 4 impugned order were either perverse or not borne out from the record of the case. 5. That being the case and in the light of the fact that the main matter has attained finality as upto the Hon’ble Supreme Court of India, this Court is of the considered view that the findings returned by the learned Court below call for no interference, as it could also not be disputed that the legal heirs of deceased Shri Sarwan Kumar were there on record during the course of the appellate proceedings, which ultimately culminated in the passing of the judgment by the Hon’ble Supreme Court of India. 6. In the light of the above observations, as this Court finds no perversity in the impugned order, the present petition is dismissed. Pending miscellaneous applications, if any, also stand disposed of. (Ajay Mohan Goel) Judge October 27, 2025 (Vinod)