IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No.105 of 2018 Decided on: 11.08.2025 ____________________________________________________ Govind Singh ……….. petitioner Versus Bal Krishan Rawat ……….respondent ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the petitioner : Mr. G.D. Verma, Sr. Advocate, with Mr. Sumit Sharma, Advocate. For the respondent : Mr. Janesh Gupta, Advocate with Ms. Rinki Kashmiri, Advocate. ____________________________________________________ Bipin Chander Negi, Judge (oral) The present petition has been preferred against the impugned order dated 12.12.2017, whereby objections filed by the present petitioner to the Execution Petition filed by the respondents in the case at hand has been dismissed. 2. Heard counsel for the parties. Perused the pleadings and impugned order. 3. The present respondent had filed suit for recovery on 22.7.2015. In the suit, it was alleged that the present petitioner had borrowed money from the present respondent in the month of March, 2013 as he wanted to purchase Apple Crop on contract 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 basis. For the aforesaid amount borrowed, a cheque had been issued by the present petitioner in favour of the respondent. The cheque was dated 1.3.2013. The amount borrowed was to be returned within a month. Since by 1.4.2013, the present petitioner had failed to pay the cheque amount, therefore, the cheque had been presented for collection. The same was dishonoured. Notice qua the dishonor of the cheque had been issued to the petitioner through registered post. On the failure of the petitioner to repay the borrowed amount, suit for recovery in the case at hand was filed by the respondent. 4. In the suit so filed, defendant had filed a written statement. Based on the pleadings of the parties, followed issues were framed:- 1. Whether the defendant is liable to pay a sum of ₹6,40,000/- along with interest @12% per annum till the realization of decreetal amount, as claimed? …. OPP 2. Whether the suit of the plaintiff is not maintainable, as alleged? ....OPD 3. Whether the plaintiff has not come to the court with clean hands. If so its effect? ...OPD 4. Whether the plaintiff has no cause of action to file the present suit, as alleged? ... OPD 5. Whether the plaintiff in estopped from filing the present suit on account of his acts, deeds, conduct and commissions, as alleged? ..OPD 3 6. Whether the suit has not been property valued and verified, as alleged? ..OPD. 7. Relief 5. Suit of the respondent herein was decreed and he was held entitled to an amount of Rs.6,40,000/- alongwith future interest at the rate of 6% per annum from the present petitioner till the date of realization of the decretal amount. The suit was decreed on 21st April, 2017. During the proceedings of the suit, no documentary as well as oral evidence was led by the present petitioner. The petitioner himself admitted to having issued the cheque in the case at hand. 6. In order to execute the decree, an appropriate execution proceeding was initiated by the present respondent to which objections were filed by the present petitioner. In the objections filed, a plea was taken that the present respondent/decree holder in the case at hand was a money lender and therefore, the suit in the case at hand filed by him on 22.7.2015, which was decreed on 21.4.2017 was not maintainable. Hence, it was contended that the judgment dated 21.4.2017 was without jurisdiction. Other than the aforesaid, it was contended that the petitioner/JD in the case at hand is a marginal farmer. 7. From a perusal of the written statement appended alongwith, it is evident that the plea of maintainability has been 4 taken in the written statement qua the suit filed by the present respondent for recovery. In this respect, it would be appropriate to refer to Order 8 Rule 2, the same has been reproduced for a ready reference here-in-below:- “2. New facts must be specially pleaded.- The defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release payment, performance, or facts showing illegality.” 8. From a perusal of the pleadings in the written statement, it is evident that no plea qua the respondent/decree holder in the case at hand being a money lender was ever raised in the written statement so filed. Hence, the plea of maintainability was bereft of any pleadings w.r.t the present respondent being a money lender. The same was never an issue before the trial Court while passing the judgment which is now being executed. Nowhere has it been acknowledged by the respondent that he is a money lender. 9. The inordinate delay, which is universally caused throughout India in the execution of a decree, has been a cause of concern. The execution proceedings which are supposed to be a handmaid of justice and sub-serve the cause of justice are, in effect, becoming tools which are being easily misused to obstruct justice. The executing court can never go behind the decree, unless the Court’s order is itself without jurisdiction. 5 10. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus, it is plain that the executing Court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing. The same is not the case at hand. Moreover as correctly observed by the executing Court, an executing Court cannot go behind the decrees. The decree in the case at hand is not one without jurisdiction. 11. This Court has a restricted and limited jurisdiction to interfere under the correctional jurisdiction vested in it in terms of Article 227 of the Constitution of India, except to set right a grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice, miscarriage of justice, un-reasonable conclusion and perversity. On the other hand in the supervisory jurisdiction reviewing or re-weighing evidence, substituting conclusions, correcting every error of fact or even a legal flaw when the final finding is justified or can be supported is not permissible. (See Sadhana Lodh vs. National Insurance Co. Limited and another, (2003) 3 SCC 524 and Garment Craft vs. Prakash Chand Goel, (2022) 4 SCC 181). 6 12. In the case at hand, for the reasons stated herein above, I am of the considered view that no ground is made out in the present petition for invoking the jurisdiction of this Court under Article 227 of the Constitution of India. 13. In view of above terms, I see no reason to interfere with the well reasoned judgment passed by the trial Court, therefore, the same is dismissed accordingly. Pending miscellaneous application(s), if any, shall also stand disposed of. Parties are directed to appear before the Trial Court on 27.08.2025. (Bipin Chander Negi) Judge August 11, 2025 tarun