2026:HHC:22867 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 165/2026 Decided on: 15.06.2026 Dr. Vidya Prakash Madhaik …..Petitioner Versus Rakesh Gupta & anr. …Respondents ______________________________________________________________ Coram: The Hon’ble Mr. Justice RomeshVerma, Judge. Whether approved for reporting?1 For the Petitioner: Ms. Seema K. Guleria, Advocate. For the Respondents: Mr. Anish Banshtu, Advocate. Romesh Verma, Judge (oral) The instant petition arises out of order dated 18.02.2026, as passed by the learned Senior Civil Judge, Shimla, in Execution Petition No. 15-10 of 2021. 2 The facts, which emerge in the instant case, are that respondents/decree holders instituted a suit for possession and recovery of Rs.18,000/- on account of use and occupation charges against the present petitioner in the Court of learned Senior Civil Judge, Shimla on 25.03.2010. The learned trial court vide its judgment and decree dated 23.02.2021, decreed the suit of the respondents/decree holders with cost and they 1Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 were held entitled for decree of possession and as a consequence, the petitioner/judgment debtor was directed to hand over the vacant and peaceful possession of the suit land to the respondents/decree holders. The respondents/decree holders were also held entitled for recovery of Rs.18,000/- as use and occupation charges till the time of the filing of the suit and for future use and occupation charges @ Rs.500/- per month from the date of filing of the suit till the time petitioner/judgment debtor surrenders possession of encroached portion to the respondents/decree holders. 3 The judgment and decree, as passed by the learned trial court, was assailed by the petitioner/judgment debtor before the learned first appellate Court, however as informed by the learned counsel for the respective parties, the same stood dismissed by the said Court. 4 The respondents/decree holders preferred an execution petition for enforcement of judgment and decree, dated 23.03.2021, before the learned executing court. The learned executing court vide its order dated 18.02.2026 directed issuance of warrant of possession afresh for the vacant possession of the suit property in accordance with the tatima, as referred to in the judgment and decree, sought to be executed, as per revenue record. Feeling dissatisfied the petitioner/judgment debtor has approached this Court. 3 5 It is contended by Ms. Seema K. Guleria, learned counsel for the judgment debtor/petitioner that the impugned order, as passed by the learned Executing Court is erroneous and thus liable to be quashed and set aside. She has submitted that the learned executing court could not have passed such order in view of the fact that the spot position of the suit land has changed after lapse of time. She has prayed that after accepting the instant petition, execution petition as preferred by the decree holders/respondents be dismissed. 6 On the other hand, Mr. Anish Banshtu, learned counsel for the decree holders/respondents, has defended the impugned order. He has submitted that the decree holders/respondents were constrained to institute suit for possession and recovery of Rs.18,000/- on account of use and occupation charges against the judgment debtor/petitioner on 25.03.2010, which stood decreed on 23.03.2021, however for the last more than 5 years, the decree has not been implemented on one pretext or other at the instance of judgment debtor/petitioner as he is prolonging the matter unnecessarily. 7 I have heard the learned counsel for the parties and have also gone through the material placed on record. 8 As noticed above, the suit, as instituted by the respondents/decree holders against the present petitioner for possession and recovery of Rs.18,000/- on account of use and 4 occupation charges in the Court of learned Senior Civil Judge, Shimla on 25.03.2010, was decreed vide judgment and decree dated 23.02.2021, whereby the decree holders/respondents were held entitled for decree of possession and as a consequence, the petitioner/judgment debtor was directed to hand over the vacant and peaceful possession of the suit land to the respondents/decree holders. Further, the respondents/decree holders were also held entitled for recovery of Rs.18,000/- as use and occupation charges till the time of the filing of the suit and and for future use and occupation charges @ Rs.500/- per month from the date of filing of the suit till the time petitioner/judgment debtor surrenders possession of encroached portion to the respondents/decree holders. 9 The learned trial court while relying upon demarcation report, Ext. AW1/A and Tatima, Ext. AW1/B came to the conclusion that the judgment debtor/petitioner has encroached over 13.80 square meters of the land, identified as Khasra No. 845/1 belonging to the decree holders/respondents. It has also been held that stand of the judgment debtor/petitioner that he had demolished slab in the year 2006 and vacated possession of encroached land in favour of decree holders/respondents also stood belied in view of demarcation report, dated 18.06.2007. There is categorical finding, rendered by the learned trial court with respect to the encroachment as 5 made by the judgment debtor/petitioner over the land of the decree holders/respondents. 10 The objections, which are being tried to be raised at this stage, are not permissible. It is settled principle of law that the executing Court cannot go behind the decree. Once judgment and decree, as passed by the learned trial court has categorically held the present petitioner to be an encroacher over the suit land, said decree, has to be taken to its logical end. The petitioner cannot be permitted to raise objections in order to nullify said judgment and decree, as passed by the competent court of law. 11 Learned counsel for the petitioner has not been able to demonstrate from the record that the impugned order, as passed by the learned executing court, suffers from any perversity or illegality. 12 Consequently, the present petition being devoid of any merit, is dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs. (Romesh Verma) 15th June, 2026 Judge (pankaj)