2025:HHC:29431 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.41 of 2025 Decided on: 30.08.2025 Jagdish Singh … Petitioner Versus Shri Kishori Lal … Respondent Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1Yes ____________________________________________________ _ For the petitioner : Mr. Naresh K. Sharma, Advocate. For the respondent : Mr. Virender Singh Kanwar, Advocate. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioner has assailed the order passed by learned Executing Court in an application filed by the Judgment Debtor under Section 151 of the Civil Procedure Code, in terms whereof, learned Executing Court allowed the Judgment Debtor to raise construction over the plinth of the old house in terms of the prayer made in the application, with the observation that he will not raise any new construction on the vacant land and shall not cause any interference on the suit land. 2. Learned Counsel for the petitioner argued that this order is per se void ab initio, for the reason that in the proceedings filed by the petitioner under Order 21, Rule 32 of the Civil Procedure Code for the execution of the decree, no such order could have 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:29431 passed by learned Executing Court. He submitted that learned Executing Court could not have gone behind the decree and it was bound to enforce the decree only. Its role was limited either to allow the execution petition filed or to allow the objections filed thereto by the Judgment Debtor, but no such order could have been passed by learned Executing Court as stands passed. 3. On the other hand, learned Counsel for the respondent submitted that the order has been passed by learned Executing Court in the peculiar facts of the case and, therefore, the same cannot be faulted with, as it does not prejudices the case of the petitioner. 4. I have heard learned Counsel for the parties and have also carefully gone through the impugned order as well as other documents appended with the petition. 5. Record demonstrates that in a civil suit filed by the petitioner, a decree was passed by the learned Trial Court, in favour of the petitioner which is appended with this petition as Annexure P- 1, i.e. in Civil Case No.107/1 of 2015, titled Jagdish Singh Versus Jeet Ram and others, decided on 13.12.2017. The decree that was passed by learned Trial Court in favour of the plaintiff reads as under- 3 2025:HHC:29431 “This suit coming on this 13th day of December, 2017 for final disposal before me Upasna Sharma, Civil Judge, Court No.2, Ghumarwin, Distt. Bilaspur, H.P. in the presence of Sh. Ajay Nadda, Adv. Ld. Counsel for the plaintiff and Sh. Narender Sharma, Adv. Ld. Counsel for the defendants. It is ordered that the present suit of the plaintiff is decreed to the effect that the defendants are restrained from causing interference over the portion of the suit land qua the land comprised in khasra number 373/366/27, 52, 93, 94, 120, 129, 95, 299, 303, khata/khatoni number 29/33, land comprised in Khasra No. 128,161,300, Khata/Khatuni No. 26/30 situated in village Tikkari, Pargna Gehrwin, Tehsil Jhandutta, District Bilaspur, H.P., which was in possession of plaintiff as per the family partition admitted by both the parties and its valuable portion till the suit land is partitioned by metes and bounds. No order as to joint possession was passed and no order as to cost is being made.” 6. For the execution of this decree, the Decree Holder filed an application under Order 21, Rule 32 of the Civil Procedure Code. During the pendency of these proceedings, an application was filed 4 2025:HHC:29431 under Section 151 of the Civil Procedure Code by the Judgment Debtor, appended with the petition as Annexure P-3, seeking permission to raise construction over the plinth of old house. It was averred in the application that the execution was pending before the Court. The applicant was allotted an old house in Khangi Taksim and he wanted to raise construction over the plinth of the same as the same was in a very dilapidated condition. The applicant was sanctioned a house under Pradhan Mantri Aawas Yojna, first installment thereof already stood issued to the applicant. The Decree Holder had already raised construction over his share allotted to him in Khangi Taksim. The applicant was having no other accommodation to live in and accordingly, he prayed that he be allowed to raise construction over the area/ plinth of the old house alongwith Sehan. 7. Though, this application was opposed by the Decree Holder, inter alia, by taking a preliminary objection that the same was not maintainable, in terms of the impugned order, the application has been allowed. 8. This Court is of the considered view that learned Executing Court gravely erred in both entertaining and allowing the application filed by the Judgment Debtor before it under Section 151 5 2025:HHC:29431 of the Civil Procedure. 9. Learned Executing Court in the proceedings which were before it under Order 21, Rule 32 of the Civil Procedure Code was to decide the execution proceedings limited to the execution of the decree itself. In the course of the adjudication thereof, learned Executing Court was having the jurisdiction to pass appropriate orders for the enforceability of the decree and in case it concurred with the objections raised qua implementation of the decree by the Judgment Debtor, learned Executing Court could have passed appropriate orders on the said objections. However, no power was vested in it to entertain a miscellaneous application on behalf of the Judgment Debtor under Section 151 of the Civil Procedure Code and pass the kind of order that has been passed in the present proceedings by the said learned Executing Court. By doing so, learned Executing Court has violated the principle that the Executing Court cannot go behind the decree. The Fora to seek such a relief for the Judgment Debtor was obviously not the execution proceedings which were filed by the Decree Holder for the execution of the decree in its favour. This extremely important aspect of the matter has been completely ignored by the learned Court below while passing the impugned order and in light of this fact, as the order 6 2025:HHC:29431 passed by learned Executing Court cannot be sustained in law, this petition is allowed and impugned order dated 18.01.2025 (Annexure P-5) is quashed and set aside. Pending miscellaneous application(s), if any also stand disposed of accordingly. (Ajay Mohan Goel) Judge August 30, 2025 (Rishi)