1. Present civil revision petition is filed under Section 115 of the Code of Civil Procedure 1908 against order of learned Civil Judge (Senior Division) Court No.1 Sundernagar District Mandi passed in execution petition No. 8 of 1999 decided on 28.12.2011.

Brief facts of the case

2. Nika Ram Decree Holder filed execution petition No. 8 of 1999 pleaded therein that civil suit No. 1 of 1988 titled Nika Ram and others vs. Nandu was decided by learned Civil Judge on 11.2.1991 and Nandu son of Shri Chamaru was restrained from making any sale deed of suit land till partition of suit land. It is pleaded that thereafter civil appeal No. 77 of 1996 was filed by judgment debtors. It is pleaded that judgment debtor died and his LRs were impleaded in civil appeal No. 77 of 1996 which was disposed of on 1.8.1997 by learned District Judge Mandi (H.P.). Matter was compromised before learned Appellate Court inter se parties and appeal was not pressed and appeal was dismissed as withdrawn. It was ordered that statements of parties and their counsel recorded would form part of order. It is pleaded in execution petition that judgment debtors have intentionally and voluntarily violated decree of learned Trial Court by way of alienating suit land in favour of Hasan Ali on dated 20.10.1998 registered on 21.10.1998 in consideration amount of Rs.150000/- (Rupees one lac fifty thousand) before partition of suit land. It is prayed that judgment debtors be detained in civil prison and property of judgment debtors be also attached. It is further pleaded that sale deed dated 20.10.1998 registered on 21.10.1998 executed by judgment debtors in favour of Hasan Ali be cancelled.

3. Judgment Debtors Nos. 1 to 6 filed objections in execution petition. It is pleaded that sale deed has been executed by judgment debtor in favour of Hasan Ali in accordance with law. It is pleaded that undertaking before learned District Judge Mandi H.P. was subject to decision of civil suit No. 71 of 1992 titled Khalelu and others vs. Radha and others. It is pleaded that civil suit No. 71 of 1992 was decided on 31.8.1998. It is pleaded that after decision of civil suit No. 71 of 1992 judgment debtors were legally competent to execute sale deed qua land mentioned in decree sheet. It is pleaded that judgment debtors have alienated suit land in favour of Hasan Ali after receiving legal opinion from Advocate. It is pleaded that Hasan Ali is bonafide purchaser for consideration. Prayer for dismissal of execution petition sought.

4. Per contra separate objections filed by Hasan Ali purchaser of suit land pleaded therein that he is bonafide purchaser of land mentioned in decree sheet for valuable consideration of Rs.150000/- (Rupees one lac fifty thousand). Prayer for dismissal of execution petition sought.

5. Per contra separate objections filed on behalf of Kundan Lal Patwari pleaded therein that he was not aware of judgment and decree passed by learned Trial Court. Kundan Lal further pleaded that he simply supplied the copy of record of right on demand as per H.P. Land Revenue Act 1954 while discharging his official duty. Prayer for dismissal of execution petition against Kundan Lal Patwari sought.

6. Learned Executing Court framed following issues on dated 19.6.2002:-

1. Whether Judgment Debtors Nos. 1 to 6 have disobeyed the decree of Court by making alienation in favour of Hasan Ali as alleged .OPP

2. Whether execution application is not maintainable ..OPRs

3. Relief.

7. Learned Executing Court decided issue No. 1 in affirmative and decided issue No. 2 in negative. Learned Executing Court partly allowed the execution petition against Judgment Debtors Nos. 1 to 3 namely Roshan Lal, Shyam Lal, Smt. Chetri Devi and ordered that Judgment Debtors Nos. 1 to 3 would be detained in civil imprisonment for a period of one month. Learned Executing Court issued arrest warrant against Roshan Lal, Shyam Lal and Khetri Devi returnable for 19.2.2012. Learned Executing Court further held that there is nothing on record to establish that Hasan Ali has constructive notice or knowledge regarding decree of civil suit No. 1 of 1988 titled Nika Ram and others vs. Nandu. Learned Executing Court further held that Hasan Ali is bonafide purchaser of suit land and his rights stand protected under Section 41 of Transfer of Property Act 1882. Learned Executing Court further held that sale deed in favour of Hasan Ali could not be declared as null and void.

8. Feeling aggrieved against order of learned Executing Court dated 28.12.2011 revisionists namely Roshan Lal, Shyam Lal, Smt. Chetri Devi filed present revision petition under Section 115 of Code of Civil Procedure 1908.

9. Court heard learned Advocate appearing on behalf of revisionists and learned Advocate appearing on behalf of non-revisionists and Court also perused entire record carefuly.

10. Following points arise for determination in civil revision petition:-

Point No.1 Whether revision petition filed under Section 115 of Code of Civil Procedure 1908 is liable to be accepted as mentioned in memorandum of grounds of civil revision petition

Point No.2 Relief.

11. Findings upon point No.1 with reasons 11.1 PW1 Ram Singh has stated that he filed civil suit and same was decreed and it was directed by Civil Court that judgment debtor namely Nandu son of Chamaru would not alienate the suit land till partition. PW1 has stated that thereafter appeal was filed and LRs of Nandu were impleaded after death of Nandu and thereafter appeal was dismissed as withdrawn on 1.8.1997 and judgment and decree of learned Trial Court was affirmed. PW1 has stated that he has supplied the copy of decision to Halqua Patwari. PW1 has stated that despite prohibitory decree of Civil Court suit land was alienated by Chetri Devi, Roshan Lal and Shyam Lal to Hasan Ali in the year 1998. PW1 has tendered in evidence documents Ext.PA to Ext.PF. PW1 has admitted that Hasan Ali was not party in civil suit. PW1 has denied suggestion that decision of Civil Court was not in knowledge of Hasan Ali. PW1 has denied suggestion that civil suit title Khalelu vs. Radha was decided in favour of judgment debtors and thereafter suit land was alienated.

11.2 RW1 Shyam Lal has stated that two civil suits were filed qua land in dispute and title of other suit was Khalelu and others vs. Radha and others. RW1 has stated that dispute in civil suit i.e. Khalelu and others vs. Radha and others was relating to shares of parties. RW1 has stated that compromise was executed in appeal No. 77 of 1996 that till decision of civil suit titled Khalelu and others vs. Radha Devi and others suit land mentioned in decree would not be alienated. RW1 has stated that it was also decided in civil appeal No. 77 of 1996 that in case partition takes place prior to the decision of civil suit title Khalelu and others vs. Radha and others then judgment debtors would be competent to alienate the suit land mentioned in decree sheet. RW1 has stated that after decision of civil suit titled Khalelu and others vs. Radha and others share of judgment debtors increased. RW1 has stated that after decision of civil suit title Khalelu and others vs. Radha and others judgment debtors have alienated their share to Hasan Ali vide sale deed Ext.RW1/A qua land mentioned in decree sheet. RW1 has stated that field map is Ext.RW1/B and jamabandi is Ext.RW1/C. RW1 has stated that advice of Advocate was also sought. RW1 has stated that Advocate advised judgment debtors to alienate land mentioned in decree sheet. RW1 has stated that Hasan Ali was not party in both civil suits. RW1 has stated that Halqua Patwari also told that land mentioned in decree sheet could be alienated. RW1 has admitted that it was decided in decree of civil suit No. 1 of 1988 that till partition of land mentioned in decree sheet land would not be alienated. RW1 has admitted that appeal was also filed and in appeal undertaking was given by judgment debtors that judgment debtors would not alienate the land mentioned in decree sheet till partition. Self stated that undertaking was conditional to the effect that land mentioned in decree sheet would not be alienated till decision of civil suit title Khalelu and others vs. Radha and others. RW1 has denied suggestion that judgment debtors have wilfully failed to obey decree of Civil Court.

11.3 RW2 Tara Chand Patwari has tendered only jamabandi.

11.4 RW3 Kundan Lal Patwari has stated that he was posted as Patwari w.e.f. 1994 to 1998. RW3 has stated that field map Ext.RW1/B and Ext.RW1/C have been issued by him. RW3 has stated that both documents are correct as per original record. RW3 has stated that field map was prepared as per request of legal representatives of Nandu. RW3 has stated that vendee was also alongwith vendors. RW3 has stated that as of today he is patient of paralysis.

11.5 RW4 Chander Mani Patwari has stated that he remained as Patwari w.e.f. 1998 to 2001. RW4 has stated that he has recorded note Ext.PG in red ink. RW4 has stated that rapat No. 484 was recorded on dated 26.6.2000. RW4 has stated that he did not peruse old record when he issued copy of jamabandi.

11.6 RW5 Hasan Ali has stated that he has purchased the land mentioned in decree sheet from Chetri Devi, Roshan Lal and Shyam Lal vide sale deed Ext.RW1/A relating to Khasra No. 1306/1 area measuring 0-4-13 bighas. RW5 has stated that he inquired from Halqua Patwari and Halqua Patwari informed him that there was no impediment for purchase of land mentioned in decree sheet. RW5 has stated that Halqua Patwari also issued field map. RW5 has denied suggestion that decree of Civil Court was in his knowledge. RW5 has denied suggestion that he has intentionally purchased the land mentioned in decree sheet despite knowledge of decree passed by Civil Court.

12. Following documents filed by parties. (1) Ext.A-1 is certified copy of judgment dated 11.2.1991 passed in civil suit No. 1 of 1988. (2) Ext.A2 is certified copy of decree sheet passed in civil suit No. 1 of 1988. (3) Ext.A3 is certified copy of order dated 1.8.1997 passed by learned District Judge Mandi H.P. in civil appeal No. 77 of 1996. (4) Ext.A4 is certified copy of statements of Shyam Lal judgment debtor and Mr.D.N.Pathak Advocate given in civil appeal No. 77 of 1996 dated 1.8.1997. (5) Ext.A5 is certified copy of decree sheet in appeal. (6) Ext.A-6 is certified copy of judgment dated 31.8.1998 passed in civil suit No. 71 of 1992 title Khalelu and others vs. Radha Devi & others. (7) Ext.A7 is certified copy of decree passed in civil suit No. 71 of 1992 title Khalelu and others vs. Radha Devi and others. (8) Ext.RW1/A is copy of sale deed dated 20.10.1998 registered on 21.10.1998 qua land mentioned in decree sheet dated 11.2.1991 passed in civil suit No. 1 of 1988 whereby judgment debtors namely Roshan Lal, Shyam Lal, Chetri Devi alienated land in favour of Hasan Ali in consideration amount of Rs.150000/- (Rupees one lac fifty thousand). (9) Ext.RW1/B is copy of field map. (10) Ext.RW1/C is copy of jamabandi for the year 1992-93.

13. Submission of learned Advocate appearing on behalf of revisionists that order of learned Executing Court is contrary to law and contrary to proved facts is rejected being devoid of any force for the reasons hereinafter mentioned. In present case it is proved on record that civil suit No. 1 of 1988 titled Nika Ram vs. Nandu was decided by Civil Court and prohibitory decree was passed by Civil Court against Nandu judgment debtor to the effect that judgment debtors would not sell the land mentioned in decree sheet till its partition. It is also proved on record that thereafter appeal No. 77 of 1996 was filed before learned District Judge Mandi title Roshan Lal and others vs. Nika Ram and others and civil appeal No. 77 of 1996 dismissed on 1.8.1997 by learned District Judge Mandi as withdrawn. Statement of co-appellant Shyam Lal and learned Advocate D.N.Pathak were recorded by learned District Judge Mandi on 1.8.1997 and Shri Shyam Lal and learned Advocate D.N. Pathak appeared on behalf of appellants before learned District Judge Mandi have given statement on 1.8.1997 that appellants namely Shyam Lal and others would not alienate the suit land in any manner till partition of suit land take place in accordance with law and subject to decision of suit filed by respondents which was pending before learned Civil Judge Sundernagar titled Khalelu and others vs. Radha and others. It is also proved on record that learned District Judge Mandi H.P. has specifically mentioned in order dated 1.8.1997 passed in civil appeal No. 77 of 1996 that statements of parties and their Advocates shall form part of order. It is held that undertaking given by Shyam Lal and learned Advocate D.N.Pathak on behalf of other judgment debtors is binding upon Roshan Lal, Shyam Lal and Chetri Devi. It is held that Roshan Lal, Shyam Lal and Smt. Chetri Devi cannot be allowed to flout undertaking given in civil appeal No. 77 of 1996 titled Roshan Lal and others vs. Nika Ram and others decided on 1.8.1997.

14. Submission of learned Advocate appearing on behalf of revisionists that after decision of civil suit No. 71 of 1992 decided on 31.8.1998 titled Khalelu and others vs. Radha and others judgment debtors were legally competent to alienate land mentioned in decree sheet in civil suit No. 1 of 1988 in view of statements given on dated 1.8.1997 by Shri Shyam Lal and learned Advocate D.N. Pathak in civil appeal No. 77 of 1996 is rejected being devoid of any force for the reasons hereinafter mentioned. Undertaking given by co-appellant Shri Shyam Lal and Mr.D.N. Pathak before learned District Judge Mandi on dated 1.8.1997 is quoted in toto:-

I have the instructions to state that the appellants undertake not to alienate the suit land in any manner till partition of suit land in accordance with law and subject to decision of suit filed by the respondents which is pending before learned Civil Judge Sundernagar titled as Khalelu versus Radha and others. The appeal may be dismissed as withdrawn.

Court has carefully perused the contents of undertaking cited supra. Court is of the opinion that undertaking is not alternative in nature subject to decision of civil suit No. 71 of 1992 titled Khalelu and others vs. Radha & others but undertaking is additional undertaking subject to decision of civil suit No. 71 of 1992 titled Khalelu and others vs. Radha and others. It is held that word And is always used for additional purpose and not used for alternative purpose. It is held that word Or is always used for alternative purpose. In the present case word And has been used in the undertaking given by Shri Shyam Lal and learned Advocate D.N. Pathak in civil appeal No. 77 of 1996 decided on 1.8.1997.

15. Submission of learned Advocate appearing on behalf of revisionists that judgment debtors have alienated the suit land in favour of Hasan Ali as per advise given by learned Advocate and on this ground revision petition be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. Judgment debtors did not examine learned Advocate in order to prove fact that judgment debtors were advised by learned Advocate to execute sale deed qua property mentioned in decree sheet passed in civil suit No. 1 of 1988 prior to partition. Plea of judgment debtors that they have alienated land mentioned in decree sheet as per advise of their Advocate is defeated on the concept of ipse dixit (An assertion made without proof).

16. Submission of learned Advocate appearing on behalf of revisionists that judgment debtors have not willfully disobeyed the decree passed by Civil Court is also rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record beyond reasonable doubt that judgment debtors have failed to obey decree of civil Court having an opportunity of obeying decree by way of executing sale deed in favour of Hasan Ali on 20.10.1998 registered on 21.10.1998 in consideration amount of Rs.150000/- (Rupees one lac fifty thousand) before Sub Registrar Sundernagar Mandi (H.P.).

17. It is well settled law that High Court cannot reverse the findings of fact of learned Executing Court unless findings of facts are perverse. See AIR 1991 SC 455 Masjid Kacha Tank Nahan vs. Tuffail Mohammed. See AIR 1969 SC 580 The Municipal Corporation Indore vs. K.N. Palsikar. See AIR 1995 SC 1357 P.Udayani Devi vs. V.V.Rajeshwara Prasad Rao and another. See AIR 2002 SC 1004 Gurdial Singh vs. Raj Kumar Anjela. In view of above stated facts and case law cited supra it is held that order of learned Executing Court is not perverse. Point No.1 is answered in negative.

Point No. 2 (Relief)

18. In view of findings upon point No.1 revision petition is dismissed. Order passed by learned Executing Court dated 28.12.2011 in execution petition No. 8 of 1999 is affirmed. Parties are left to bear their own costs. Record of learned Executing Court be sent back forthwith along with certified copy of order. Revision petition is disposed of. All pending miscellaneous application(s) if any also disposed of.