Vijender Kumar Aggarwal & Ors. v. Department of Forest & Wild Life & Ors.

1. This is a regular second appeal under Section 100 CPC against the order dated 27.1.2011 passed by the learned Additional District Judge in R.C.A. No.2/2010.

2. On 27.11.2013, this court had expressed the prima facie view that the present regular second appeal is not maintainable. The learned counsel for the appellant had accordingly sought time to examine the 2013:DHC:6411 issue, however, thereafter on the adjourned dates, another counsel appeared and sought time to argue the matter afresh and contend that the regular second appeal is maintainable.

3. Before dealing with the submission of the learned counsel for the appellant, it may be pertinent to give brief background of the case. The appellant, Vijender Kumar Aggarwal, filed a suit bearing No.140/1980 against Union of India and Central Public Works Department claiming a declaration that the plaintiff is the owners of the land measuring 20 bighas 16 biswas comprising of khasra No.305, Village Malcha in Khewat No.1, Delhi State, Delhi and that the defendants, namely, the respondents herein have no right, title or interest and accordingly they be restrained permanently from interfering with the possession of the appellants herein. The said suit was decreed ex parte by the Sub Judge way back on 18.7.1980. No steps were taken by the appellant Vijender Kumar Aggarwal to have the said decree.

4. According to the averments made by the appellant himself, it is not in dispute that in the year 1996, Vijender Kumar Aggarwal was evicted from the land in question being an unauthorized occupant pursuant to the notification No.F10(42)/PA/DCF/93/2012-17. No steps were taken by the appellants to execute the decree passed in their favour till 2007 although it has been pointed out by Mr. Bansal, the learned counsel for the appellant that after dispossession, the appellants had filed a writ petition being W.P. (C) No.7351/2011 in the Delhi High Court in the year 2011, however, the same was dismissed as withdrawn on 3.10.2011. In 2007, he filed an execution petition bearing No.123/2007 under Section 36 read with Order 21 Rule 10 CPC. The prayer in the execution petition was as under:- “a) Declare that the decree holders are the true owners and in possession of the suit property and direct the judgment debtors, Revenue Department and other relevant authorities to record the same in their records. b) Direct the judgment debtors or any other appropriate authorities to desist from dispossessing the decree holders from the suit property without due process of law and adequate compensation. c) Pass any other order or orders as this Hon’ble Court may deem fit and proper. d) Allow cost.”

5. The executing court dismissed the execution petition on 12.3.2010 by observing that so far as the recording of entry in the revenue record of the respondents is concerned, that cannot be done as the appellants themselves have admitted in the execution petition that they have been dispossessed in the year 1996. As regards the other execution with regard to the decree of permanent injunction is concerned, the executing court observed that the said prayer for execution has become infructuous as the appellants are not in possession of the property in question and, therefore, no permanent injunction can be issued.

6. Feeling aggrieved, the appellants preferred an appeal against the order dated 12.3.2010 passed by the executing court being RCA No.2/2010 titled Vijender Kumar Aggarwal & Others vs. Land & Development Office & Another in which the impugned order dated 27.1.2011 has been passed. This order upholds the order of the executing court that the execution petition has been dismissed not only on the ground of limitation but on other grounds also. The appellate court also observed that as the appellants have already been dispossessed from the suit property in the year 1996 according to their own admission, therefore, there was nothing to be executed and no infirmity could be found in the order of the executing court and similarly, so far as the permanent injunction is concerned, no such injunction could be issued.

7. The learned counsel for the appellants before this court has vehemently contended that despite the fact that their execution petition has not only been dismissed by the executing court on 12.3.2010 and the appellant court on 27.1.2011, still this court could entertain the regular second appeal as the court has not considered Order 21 Rule 32 CPC under which the appellants had to be restored back to the possession. In this regard, he has referred to the judgment of case titled Kanwar Singh Saini vs. High Court of Delhi; (2012) 2 SCC (Cri) 423.

8. I have gone through the said judgment. The judgment is not applicable to the facts of the present case. The learned counsel for the appellants is ignoring the fact that according to Section 100 CPC, second appeal is permissible only against the decree and that too when a substantial question of law is involved. In the instant case, there is no decree passed by the executing court or even by the first appellate court. The said two courts were only executing the decree which was passed in favour of the appellants way back in the year 1980. The order dated 27.1.2011 is not an order in the nature of a decree and, therefore, it cannot be subjected to the second appeal even though it may vaguely involve any question of law.

9. I feel that the present appeal itself is not maintainable and accordingly, the same is dismissed. V.K. SHALI, J. DECEMBER 12, 2013 ‘AA’