Abhay M. Naik, J:

1. This is a contempt petition under sections 10, 12 and 16 of the Contempt of Courts Act, 1971 for taking action under the provisions of the said Act against respondents/contemnors No. 1 - Yamuna Devi, 2 - Ram Manohar. 3 - Shri R. P. Thakur (Presiding Judge, Court of Civil Judge Class 1, Mungaoli,. District Ashok Nagar), and 4 - Shri Salim Khan (Naib Nazir) for their alleged act of having deliberately and intentionally flouted the order of this Court dated 21-10-2009 passed in S. A. No. 544/2009.

2. Facts in short relevant for this petition are that respondents No. 1 and 2 instituted Civil Suit No. 24-A/2006 for eviction from the suit shop and recovery of arrears of rent, which was decreed in their favour against the applicant by the Court of Civil Judge, Class I. Mungaoli, District Guna vide judgment and decree dated 21-4-2008. Civil Appeal No. 16-A/2008 preferred against it was dismissed by the learned lower Appellate Judge on 29-9-2009. 30th September, 2009 was public holiday being Sunday, therefore the application for certified copy of the judgment and decree of the lower Appellate Court was submitted on 1-10-2009, which was delivered on 7-10-2009. Applicant on receipt of certified copy of the judgment and decree dated 29-9-2009, collected the requisite papers of his case from his local counsel and contacted the lawyer at Gwalior for preparation and filing of Second Appeal before this Court. Second appeal along with Stay application was got prepared by the applicant's counsel on 14-10-2009. On account of Deepawali Holidays from 15-10-2009 to 19-10-2009, the appeal could not be submitted before this Court within the said period. In the meantime, on application of respondents No. 1 and 2/decree-holders, warrant of possession and warrant of attachment were ordered to be issued by the Executing Court on 8-10-2009 (Civil Judge, Class I, Mungaoli), which was presided over by respondent No. 3. Pursuant to this, warrant of possession was dispatched on 13-10-2009 vide dispatch No. 286 from the Executing Court, directing thereby Naib Nazir, Mungaoli to submit report on or before 23-10-2009. Copy of warrant of possession is on record as Annexure-B.

3. Applicant, on coming to know of the aforesaid, submitted an application under Order 21, Rule 26 and section 151, Civil Procedure Code before the Executing Court on 20-10-2009 stating thereby that Second Appeal was already prepared but the same could not be filed on account of Deepawali holidays. A prayer was made to grant few days for submitting second appeal and seeking stay order. It was prayed that till then proceedings with regard to delivery of possession of the suit shop may kindly be stayed. It was also contended by the applicant that he was ready and willing to comply with the conditions which may be imposed by the Executing Court. This application was duly supported by an affidavit. Copy of the application and affidavit are on record as Annexures C and D respectively.

4. Learned Executing Judge i.e. (respondent No. 3) considered the application contained in Annexure-C and dismissed it on the same day holding thereby that the application was submitted on the basis of probabilities. Accordingly, case was ordered to be fixed on 23-10-2009 for the report with regard to execution of warrant of possession.

5. After rejection of application contained in Annexure-C, respondents No. 1 and 2/decree-holders submitted an application on the same day under section 151, Civil Procedure Code before the Executing Court that the applicant has put a lock on the suit shop in order to create obstruction in the execution. Therefore, the warrant of possession could not be executed. Decree-holders prayed that concerned officer may kindly be directed to deliver the possession of the suit shop after breaking open the lock. Copy of the application was supplied to the applicant's counsel at about 4:45 P.M. on 20-10-2009, which is on record as Annexure-E.

6. Respondent No. 3/Presiding Judge of the Executing Court again took up the matter for hearing on the same day and passed the order allowing thereby the application contained in Annexure-E, submitted by the decree-holders. Learned Executing Judge directed that the memorandum be issued to the Naib Nazir. Mungaoli to the effect that in the event of there being a lock on the suit shop, the possession of the suit shop be delivered to the decree-holders after breaking open the lock. It was further directed that the list of items/articles which are found kept in the suit shop be prepared and the same may be attached for recovery of decretal amount. Execution case was thereafter directed to be fixed on 23-10- 2009, awaiting the report of Naib Nazir. Copy of this order is on record as Annexure-F.

7. The applicant submitted Second Appeal before this Court on 21-10-2009 at 10:15 A.M. through his counsel. Second Appeal came up for hearing on the same day on the strength of mention-slip. This Court admitted the second appeal for hearing on the substantial questions of law formulated by it and stayed the execution of the decree so far as it relates to eviction until further orders, subject to compliance of conditions mentioned in the order dated 21-10-2009. Copy of the order is on record as Annexure-A. It was immediately informed on 21-10-2009 at 3:05 P.M. by counsel at Gwalior, namely, Shri S. P. Jain to the local lawyer at Mungaoli, namely, Shri Anil Jain, on mobile phone, who in turn, immediately filed an application duly supported by his own affidavit before the Executing Court at 3:30 PM intimating thereby the stay order passed by this Court in S.A. No. 544/2009 preferred by the applicant. Copy of the application and affidavit are marked as Annexure-G and H, respectively. It was further stated in the application that certified copy of the stay order would be submitted on being issued by the copying section of the Hon'ble High Court. Prayer was accordingly made not to proceed with the execution.

8. The Executing Court on receipt of Annexure-G and H did not stay the process of execution but invited reply from the decree-holders within half an hour. It directed that the case be put up again at 4:00 PM. Thereafter, execution case was taken up at 4:00 PM. Learned Executing Judge (i.e. respondent No. 3) rejected the said application marked as Annexure-G holding that the possession was already delivered at 2:00 P.M. as revealed in the reply of the decree-holders as well as possession warrant receipt of possession and Panchnama. Accordingly, it was held that there was no propriety for staying the proceedings of execution. Copy of this order is on record as Annexure-I. Copies of the report, receipt of possession and Panchnama are on record as Annexure-J, K and L, respectively.

9. It is submitted by the applicant that possession of the suit shop was not actually delivered to or taken by the decree-holders (respondents No. 1 and 2) until receipt of communication by the Executing Court of the stay order granted by this Court in S.A. No. 544/09. It is further submitted that warrant of possession was not executed till 3:30 P.M. or even thereafter till late night on 21-10-2009 and the documents marked as Annexures J, K and L, allegedly received from Nazarat section by the Executing Court are merely paper proceedings having been prepared by Naib Nazir, Mungaoli falsely on the instance and dictates of respondent No. 3, who being in league with respondents No. 1 and 2 with corrupt motives had already decided to extend undue favour to the decree-holders by usurping the powers conferred on him as a Presiding Judge of the Executing Court. Corrupt motives according to the applicant are reflected from the facts and circumstances described as under : -

"(i) That from the order-sheet (Annexure-F) recorded by the learned Executing Court (presided by the respondent No. 3) on 20-10-2009 at 4-45 P.M. in second round, it would become clear that while allowing the application under section 151, Civil Procedure Code (Annexure-E) filed on behalf of the respondents No. 1 and 2 (decree-holders), learned Executing Court (presided by the respondent No. 3) directed that a GYAPAN (memorandum) be issued to the Naib Nazir Mungaoli (respondent No. 4) to the effect that in the event of there being any lock put on the suit shop, the possession be delivered after breaking the lock and a list of the goods/articles kept in the shop be prepared and in recovery of decretal amount, the goods (movable properties) be attached, and the case be put up on 23-10-2009 as before for submitting warrant report.

The applicant contends that there is nothing on record indicating that in pursuance of the said order passed in second round at 4-45 P.M. on 20-10-2009 any GYAPAN (Memorandum) was ever prepared or issued to the Naib Nazir, Mungaoli (respondent No. 4) either under signatures of the Presiding officer of the learned Executing Court (respondent No. 3) or otherwise. There is also nothing on record to indicate that in pursuance of the said order passed in second round at 4-45 P.M. on 20-10-2009 any endorsement was made on the possession warrant (Annexure- B) so dispatched initially on 13-10-2009 vide dispatch No. 286 dated 13-10-2009.

Hence in the absence of any GYAPAN (Memorandum) being prepared or issued to the Naib Nazir, Mungaoli (respondent No. 4) under the signatures of the Presiding Officer of the Executing Court (respondent No. 3), in pursuance of the said order dated 20-10-2009 passed in second round at 4-45 P.M., there arises no question of Naib Nazir, Mungaoli (respondent No. 4) having come to the spot (suit shop) on the next day i.e. on 21-10-2009 before 2-00 P.M. for breaking the lock of the suit shop and for delivering the possession of the suit shop after breaking the lock put on the suit shop, nor the Naib Nazir, Mungawali (respondent No. 4) did actually come on the spot on 21-10-2009 upto 2-00 P.M. for the aforesaid purpose.

(ii) It is also apparent from the order passed by the learned Executing Court (presided by the respondent No. 3) on 21-10-2009 in second round at 4-45 P.M., that in addition to directing the delivery of possession to the respondents No. 1 and 2 (decree-holders) after breaking of the lock put on the suit shop, the learned Executing Court further directed that a list of the goods/articles found kept in the suit shop be prepared and the said goods/articles (movable properties) be attached in recovery of the decretal amount.

(iii) The applicant, in this regard, contends that there is nothing on record to indicate that in pursuance of the said further direction contained in the said order dated 20-10-2009 passed in second round at 4-45 P.M., a GYAPAN (Memorandum) was prepared or issued to the Naib Nazir, Mungawali (respondent No. 4 herein) either under the signatures of Presiding Officer of the Executing Court (respondent No. 3) or otherwise. There is also nothing on record to indicate that in pursuance of the said order passed in second round at 4-45 P.M. on 20-10-2009 any endorsement was made on the attachment warrant (Annexure-B) dispatched initially on 13-10-2009 vide dispatch No. 287 dated 13-10-2009.

(iv) In addition to this, the most significant fact is that from the copies of certified copies of the report and Panchnama (which are being submitted herewith as Annexure-M and Annexure-N respectively) appended with and forming part of the attachment warrant, it would become clear that in addition to the documents namely report (Annexure- J), Panchnama (Annexure-K) and possession receipt (Annexure-L), said report and Panchnama (Annexure-M and Annexure-N respectively) were also prepared by the Naib Nazir, Mungawali (respondent No. 4) on spot on 21-10-2009 in respect of the attachment of goods/articles (moveable properties) found kept in the suit shop. This report and Panchnama (Annexure-M and N respectively) do not reflect at all as to at what time on 21-10-2009 lock put on the suit shop was broken by the Naib Nazir (respondent No. 4) and thereafter as to upto what time the goods/articles as mentioned therein were removed out from the said goods/articles as mentioned in the said Panchnama (Annexure-N) and after removing out the said goods/articles as mentioned in the said Panchnama (Annexure- N) and after removing out the said goods/articles as mentioned in the said Panchnama (Annexure-N) at what time, the vacant possession of the suit shop was delivered to the respondent No. 1 herein (decree-holder) and at what time the said report (Annexure-M) with the said Panchnama (Annexure-N) was submitted by the Naib Nazir, Mungaoli (respondent No. 4 herein) before the learned Executing Court (presided by the respondent No. 3). Inasmuch as, even from the order passed on 21-10-2009 in second round at 4-00 P.M. (Annexure-1) by the learned respondent No. 3 it is not reflected that along with the documents namely report (Annexure J) Panchnama (Annexure-K) and possession receipt (Annexure-L), the said report with Panchnama (Annexure-M and N respectively hereto) also had come to be received by the learned Executing Court (presided by the respondent No. 3) from the Nazarat section at the time the case was taken up for hearing in second round at 4-00 PM on 21-10-2009. Further in the said order dated 21-10-2009 passed in second round at 4-00 PM there is no mention or reference to the said report and Panchnama (Annexure-M and N respectively) neither there is any endorsement of the presiding officer of learned Executing Court (respondent No. 3 herein) regarding the said report and Panchnama having been submitted to him on 21-10-2009 although other documents namely possession warrant (Annexure-B), report of Naib Nazir (Annexure-J), Panchnama (Annexure-K) and possession receipt (Annexure-L) bear such endorsement of the Presiding Officer of learned Executing Court (respondent No. 3 herein) regarding the said documents having been submitted to him on 21-10-2009.

(v) All the aforesaid facts on record clearly speak that the aforesaid report and Panchnama (Annexure-M and N respectively) were also got prepared by the respondent No. 3 usurping his powers as a Presiding Officer of the Executing Court, from the Naib Nazir (respondent No. 4) falsely subsequent to passing of the order by him (respondent No. 3 herein) on 21-10-2009 in second round at 4-00 P.M., with mala fide intention in order to fulfil his corrupt motives getting over and nullifying order passed by this Hon'ble Court on, 21-10-2009 in the said second appeal deliberately and intentionally.

(vi) It is also clearly apparent from the aforesaid facts on record that on 21-10-2009 till 2-00 P.M. neither the goods/articles as mentioned in the said another Panchnama (Annexure-N hereto) kept in the suit shop were removed out by the Naib Nazir Mungaoli (respondent No. 4 herein) from the suit shop nor the list of the said articles/goods was prepared nor the vacant possession of the suit shop was delivered by him (respondent No. 4) to the respondents No. 1 and 2 (decree-holders) after removing out the said goods/articles from the suit shop nor it was possible either for the respondent No. 4 or any other single person to have done all that within such a short time i.e. till 2.00 PM on 21-10-2009 and the documents aforementioned indicating the vacant possession of the suit shop to have been delivered to the decree-holder on 21-10-2009 at 2-00 PM are apparently paper transactions and have falsely been got prepared by the respondent No. 3 from the respondent No. 4 with mala fide intentions in order to fulfil his corrupt motives getting over the order passed by this Hon'ble Court on 21-10-2009 in the said Second appeal.

(vii) The applicant, at the cost of repetition, again contends and maintains that on 21-10-2009 till 2-00 P.M., neither the goods/articles kept in the suit shop, were removed out by the Naib Nazir (respondent No. 4), nor the list thereof was prepared by him (Naib Nazir-respondent No. 4) nor the vacant possession of the suit shop was delivered to the decree-holder/respondents No. 1 and 2 after removing out the goods/articles kept therein and preparing the list thereof by him (respondent No. 4). The applicant contends that the proceedings with regard to removing out the goods/articles kept in the suit shop and thereafter with regard to delivering the vacant possession of the suit shop to the decree-holder/respondents No. 1 and 2 herein, infact, were started by the Naib Nazir (respondent No. 4 herein) after the communication regarding the order passed by this Hon'ble Court on 21-10-2009 in the said Second Appeal was given by the local counsel of the applicant through application (Annexure-G) duly supported by his affidavit (Annexure-H) to the learned Presiding Officer of the Executing Court (respondent No. 3 herein) i.e. after 3-30 P.M. and the goods/articles kept in the suit shop were continued to be removed out from the said suit shop by the respondent No. 4 as well as by the decree-holder/respondent No. 2 and his wife till late night on 21-10-2009 and after removing out the goods/articles as detailed in the Panchnama (Annexure-N) from the suit shop, the respondent No. 2 was put in possession of the suit shop by the respondent No. 4 (Naib Nazir) in the night on 21-10-2009. In support of this assertion, the applicant is filing the affidavit of his wife Smt. Meena as well as affidavit of Ashish Kumar Jain, who is a shopkeeper of a shop nearer to the suit shop. These two deponents i.e. applicant's wife Smt. Meena and Shri Ashish Kumar Jain, (shopkeeper of a shop nearer to the suit shop) were present on the spot at that time, when the respondent No. 4 and respondent No. 2 and his wife were doing all that what has been mentioned hereinabove. The applicant was at Gwalior on 21-10-2009 and came back to Mungaoli on the next day i.e. on 22-10-2009 after obtaining the certified copy of the order passed by this Hon'hle Court on 21-10-2009 in the said second appeal. Hence it was on the next day i.e. on 22-10-2009 when the applicant came back to Mungaoli from Gwalior, that he came to know about the aforesaid facts from the abovenamed deponents i.e. his wife Smt. Meena and Shri Ashish Kumar Jain (shopkeeper of it shop nearer to the suit shop). Inasmuch as, at the time when the respondent No. 4 (Naib Nazir), respondent No. 2 (decree- holder) and his wife were doing the aforesaid illegal acts on the spot on 21-10-2009, the applicant's wife Smt. Meena asked the respondent No. 2 and his wife not to do all that, thereupon the respondent No. 2 (decree- holder) and his wife forcibly taken her in the suit shop and beat her mercilessly by iron rod which was kept in the suit shop and as a result whereon, the applicant's wife Snit. Meena received injuries on various part of her body. A report of this incident was lodged by applicant's wife Smt. Meena with the P.S. Mungaoli on the same day (21-10-2009) at about 4-30 P.M. However on this report, the P.S. Mungaoli did not take any action in the matter for the reasons best known to it."

Thus, it has been stated that the applicant having already complied with the terms and conditions granted by this Court vide order dated 21-10-2009 in Second Appeal No. 544/2009, his possession on the suit shop was and is liable to be protected. Respondents No. 2 to 4 have deliberately and intentionally in order to get over the aforesaid stay order, flouted it by giving effect to the decree which was stayed with respect to delivery of possession. This being a contemptuous act, it has been prayed that the respondents be suitably punished under the Contempt of Courts Act, 1971.

10. Respondents No. 1 and 2 submitted a joint reply dated 4-2-2010, whereas, respondents No. 3 and 4 submitted a joint reply dated 26-2-2010. Respondents submitted that they have not committed any wilful act in disobedience of this Court's order. However, it was submitted that they tender unconditional apology, if anything is found against them.

11. It is important to take note of drift of following events :-

(i) On 25-11-2009, this case came up for the first time for hearing. During hearing, it was pointed out that the Executing Court vide later portion of the order dated 20-10-2009 directed that memorandum be issued to Naib Nazir, Mungaoli for delivery of possession of the suit shop by breaking the lock, if any. Applicant's learned counsel made available the certified copy of the order dated 20-10-2009 (marked as Annexure-F) which did not contain signature of the Naib Nazir, namely, Salim Khan, in the margin. It was contended that no such memorandum was issued at all to the Naib Nazir, Mungaoli, and the learned Executing Judge in collusion with decree-holders managed to obtain fake report from Naib Nazir, Mungaoli about delivery of possession in violation of the stay order granted by this Court on 21-10-2009. Considering it, this Court directed on 25-11-2009 itself to requisition the record of the Executing Court immediately. The requisition notice was prepared on 26-11-2009 and was issued on 27-11- 2009. Surprisingly, the record of the execution case was received by this Court after a long period of time on 30-1-2010. Contrary to Annexure-F, it was found that in the margin of the order dated 20-10-2009, there appears signature of Naib Nazis, namely, Salim Khan. He is shown to have noted the order on 20-11-2009. Considering it and other discrepancies revealed in the execution case, notices were issued to respondent No. 3 (Presiding Judge of the Executing Court) as well as respondent No. 4 (Naib Nazir, Mungaoli) on 4-2-2010. Although, service was effected on respondents No. 3 and 4, but no one appeared on their behalf on 10-2-2010. In the interest of justice, Principal Registrar was directed on 10-2-2010 to again serve them with further notices. They were directed to submit reply with affidavits within two weeks. It was also directed that the Principal Registrar may also allow them to examine the record in the presence of O.S.D. Pursuant thereto, record was inspected on 26-2-2010 by respondents No. 3 and 4 in the presence of O.S.D. A joint reply on behalf of respondents No. 1 and 2 as well as on behalf of respondents No. 3 and 4 was separately submitted on 4-2-2010 and 26-2-2010, respectively. On 4-3-2010, the matter was heard on the question of admission. At the time of admission, it was again argued that the learned Executing Judge in the later portion of order sheet on 20-10-2009 passed an order that memorandum, be issued to Naib Nazir, Mungaoli to deliver possession of the suit shop by breaking open the lock, if any. Photocopy of the certified copy of the order is on record as Annexure-F. It does not contain signature of Naib Nazir. Original certified copy was also made available, at the stage of admission for perusal of this Court. It was contended that no memorandum was issued to Naib Nazir, pursuant to this order and there is no iota on record that any such memorandum was dispatched by the Executing Court to Naib Nazir. According to learned counsel for applicant, no such entry exists in the dispatch register and the manipulations in the order-sheets have been made to get over the effect of absence of issuance of memorandum. Since, the respondent No. 4 is a Class III employee under subordination of respondent No. 3. all these have been managed and the record of the execution case has thus been changed, which is a contemptuous act.

ii) Considering the entire scenario revealed in the record, this Court on 4-3-2010 admitted the contempt petition in the presence of learned counsel for respondents. On 8-3-2010. additional reply was submitted on behalf of respondent No. 4 that in the margin of later portion of the order dated 20-10-2009 signatures of respondent No. 4 (i.e. Salim Khan) have been put by him by mistake for which he tenders unconditional apology. This additional reply is duly supported by an affidavit of respondent No. 4. Case was listed thereafter for hearing on different dates. It is again to be taken note of that respondent No. 4 was present in person on 25-3-2010, when he stated before this Court in the presence of his lawyer that warrant of possession which was issued for 23-10- 2009 was returned by him with his report on 20-10-2009. Final arguments were heard in part on that day. Case was adjourned for remaining arguments at the request of Senior Advocate Shri S. B. Mishra, appearing for respondent No. 3. Afterwards, the arguments were finally concluded.

12. Shri Sanjeev Jain, learned counsel appearing for applicant, Shri S.B. Mishra, learned senior counsel with Shri Sanjay Sharma, on behalf of respondent No. 3. Shri J. P. Mishra, Advocate for respondents No. 1 and 2 and Shri Sanjay Sharma, Advocate for respondent No. 4 made their respective submissions.

13. From the facts emerging from the record, it is clear that the learned lower Appellate Judge dismissed Civil Appeal No. 16-A/2008 on 29-9-2009. 30th September, 2009 was public holiday being Sunday, therefore, application for certified copies of the judgment and decree of the lower Appellate Court was made on 1-10-2009, which were issued on 7-10-2009. From 15-10-2009 to 19-10-2009 there were Deepawali holidays. On 8-10-2009, learned Executing Judge directed for issuance of warrant of possession in respect of suit shop as well as warrant of attachment in respect of movable property. Execution case was fixed for submission of report in respect of execution of the warrant. On 20-10- 2009, applicant/judgment debtor submitted an application for urgent hearing which was accepted and the case was taken up for hearing. Judgment debtor also submitted an application under Order 21, Rule 26, Civil Procedure Code read with section 151, Civil Procedure Code stating therein that he intended to prefer second appeal before the Hon'ble High Court at Gwalior against the judgment and decree dated 29-9-2009. Appeal was prepared at Gwalior on 14-10-2009, but due to Deepawali holidays from 15-10-2009 to 19-10-2009, the same could not be submitted. It was stated in the application that some time may be granted in order to seek stay order from the Hon'ble High Court and the execution proceedings with regard to delivery of possession may be stayed for reasonable time. This application was duly supported by an affidavit of judgment debtor himself. Despite this, learned Executing Judge observed that the said application is based on probabilities and does not appear to be based on bona fides. It is pertinent from the aforesaid that although a period of 90 days is prescribed for second appeal and the judgment debtor/applicant approached the Executing Court that he got prepared the appeal for being filed in the Hon'ble High Court within less than 30 days, which could not be filed on account of Deepawali vacation. This application was duly supported by personal affidavit of the judgment debtor. It is un-understandable that in the absence of any rebuttal how the learned Executing Judge could have attributed absence of bona fide on the part of the judgment debtor. The applicant was justified in mentioning that a reasonable time may be granted to him in order to file second appeal and seek stay order from the Hon'ble High Court as he was hopeful of it's success. Court of Law is not a grocery shop that one may say that he will obtain stay order. Learned Executing Judge has not applied his judicial mind while observing that the application is based merely on probabilities that too, when second appeal was admitted immediately on the first date of hearing. Hopes expressed by the applicant were found to have basis because the second appeal was admitted on the first day of hearing on the substantial questions of law formulated by this Court while admitting the appeal. Approach of the learned Executing Judge is found to be non-judicious in the facts and circumstances of the case more so, when the second appeal was got prepared within 30 days despite availability of 90 days as period of limitation. Learned Executing Judge after rejection of the application of the judgment debtor fixed the case for 23-10-2009 for report with regard to warrant.

14. Although the order-sheet dated 20-10-2009 was concluded by the learned Executing Judge after rejecting the application of the judgment debtor fixing thereby the case on 23-10-2009 for report with regard to warrants, it is revealed in the order-sheet that the execution case was again taken up despite there being no application for urgent hearing or early hearing. Learned Executing Judge had no requisite patience for awaiting for the report of warrants. Instead, an application under section 151, Civil Procedure Code submitted by the decree- holders was taken up for consideration which contained a prayer for delivery of possession by breaking the lock. It is a typed application on which date of 14-10-2009 was typed. The same has been scored out by pen and instead 20-10-2009 has been mentioned by pen which goes to show that the application was already prepared on 14-10-2009. This Court requisitioned the Process Register w.e.f. 28-8-2009 (hereinafter referred to as Register-A) as well as the register w.e.f. 6-5-2008 of work ticket whereby warrants were issued to Naib Nazir/Sale Amin for execution of the Court's order (hereinafter referred to as Register-B). In Register-A, there are entries at S. No. 286 and 287 on 13-10-2009 about having issued warrant of possession and warrant of attachment in the present case which were made over to Salim Khan under his signature on 3-10-2009. At page No. 7 of the Register-B, there is an entry that warrant of possession was issued against applicant on 6-11-2008. It was issued to the process server Sardar Singh, Sale Amin. It appears to have been issued after the suit was decreed on 21-4-2008. As regards issuance of warrant of possession pursuant to judgment and decree dated 29-9-2009 of the lower Appellate Court; there appears to be a single entry at page 20 of the said register which shows that warrant of possession as well as warrant of attachment were received by Salim Khan on 20-10-2009 for execution. There are only 21 pages in the said register in filled-up condition. Last page at page No. 21 is about report of Civil Suit No. 50A/2009, Parvati Bai Bendel Singh, dated 22-12-2009. There is no reason/explanation that when the warrants were made over to Salim Khan (Naib Nazir) on 13-10-2009 as per Register A (of Nazarat section), why it was not handed over for execution before 20th October, 2010. Absence of earlier entry in Register B makes it clear that warrant of possession as well as warrant of attachment were not assigned to Salim Khan for execution before 20-10-2009. Although in the later portion of the order dated 20-10-2009 it is mentioned that Naib Nazir Mungaoli appeared before the Executing Court and submitted his report that the judgment debtor put a lock on the suit shop and has closed the shop. Warrant of possession at page 42 of the execution file is shown to have been submitted before the Court on 21-10-2009 under the signature of the respondent No. 3, the Presiding Judge himself. Thus, in view of the endorsement made by respondent No. 3 himself, the warrant containing the report dated 20-10- 2009 on it's reverse was not available before the Executing Court on 20-10-2009. It may further be seen that as per Work Ticket Register B, warrants were assigned/delivered to respondent No. 4 on 20-10-2009. It is not easily conceivable that after receipt of warrants the Naib Nazir would immediately move for execution giving utmost priority over all the other work and would report immediately without any specific order/indication from the Court. In Panchnama at page 39 and 40 of execution file, respondent No. 4 is shown to have visited the suit shop on 13-10-2009 whereas as per work Ticket Register (Register B), warrants were received by respondent No. 4 for execution on 20-10-2009. It is mentioned at page 39 and 40 that the Naib Nazir visited the suit shop on 13-10-2009 when it was found that the judgment debtor had left the shop in open condition. He could not be found for two hours. Naib Nazir Mungaoli visited the suit shop again at 5 P.M. when a neighbour shop keeper (particulars not described) informed that the lock was put by the judgment debtor sometime before leaving the place. Again, the judgment debtor could not be found out. It is not the report of the Naib Nazir that judgment debtor had put the lock in order to avoid or obstruct execution. Moreover, according to endorsement of respondent No. 3 himself, the warrant of attachment along with Panchnama etc. was presented before him on 23-10-2009 and was not available on 20-10-2009, yet he has made a mention in the later portion of the order dated 20-10-2009 presumably to usurp his office for giving undue advantage to the decree-holders. It may be noted that there is no mention at page 38 to 41 about independent presentation on earlier occasion. As already observed, there is no mention of issuance of warrant of possession or warrant of attachment vide memorandum of the Court as directed on 20-10-2009. Thus, the report of Naib Nazir in respect of his visit to the suit shop on 13-10-2009 appears to be concoction being outcome of collusion between respondents No. 3 and 4 and decree holders.

15. Respondent No. 4 has allowed the application of the decree-holders under section 151, Civil Procedure Code and ordered that the memorandum be issued to Naib Nazir Mungaoli for delivery of possession of the suit shop by breaking the lock, if any. Execution case vide order dated 8-10-2009 was directed to be fixed on 23-10-2009 for submission of report in respect of execution of order. On 20-10-2009, learned Executing Judge after rejecting the application of judgment debtor for stay of the execution fixed the case for 23-10-2009 and put his signature. There is nothing on record to show that what was the occasion to Naib Nazir Mungaoli to appear before Executing Court on 20-10-2009 at later stage. As per the record of the execution case there is no iota that Naib Nazir Mungaoli was summoned by respondent No. 3. His report with regard to execution of warrant of attachment was also presented, as per the endorsement of respondent No. 4 on 23-10-2009. How, Naib Nazir could have appeared every time in the execution case without summoning by the Court is or not understandable. It was ordered vide later portion of the order dated 20-10-2009 that memorandum be issued to Naib Nazir to deliver possession of the suit shop after breaking the lock. No such memorandum is found to have been issued by the Executing Court to Naib Nazir. In the certified copy of the order dated 20-10-2009 issued to applicant, there appears no signature of Naib Nazir in the margin. In the register of work-ticket (described hereinabove) there is no mention of any such memorandum having been issued to Naib Nazir. There is no dispatch number in the Court register about such memorandum having been issued by respondent No. 3. It seems that in order to get over absence of memorandum, signature of Nazir has been procured in the margin of the order sheet of the original file without entertaining slightest idea that it's certified copy has already been issued to the applicant. As per the seal of copying section, certified copy contained in Annexure-F, was issued on 22-10-2009 and the signatures of respondent No. 4 were obviously not there till then. In order to save respondent No. 3 it seems that an affidavit of respondent No. 4 has been submitted on 8-3-2010 wherein he mentioned that the signature of Sale Amin appeared in the margin of later portion of the order-sheet dated 20-10-2009 have been put by him by mistake. It is nowhere mentioned in the affidavit that when were the signatures put on the order-sheet of the execution file and who had allowed to put his signature in antedated manner. Respondent No. 3 being Presiding Judge of the Executing Court is obviously having control and custody of the file through clerical staff of the Court. Respondent No. 4 can have no access to such file without the consent of the Presiding Judge or the concerning clerk. There is no mention in the affidavit that the signatures were put by respondent No. 4 merely with consent of clerical staff and without the knowledge/consent of respondent No. 3. This being so, it may be inferred that respondents No. 3 and 4 in collusion with the decree- holders committed the said act in order to get over the shortcoming of the record for providing undue advantage to decree-holders in the matter of delivery of possession.

16. Respondent No. 4 on 25-3-2010 stated before this Court in the presence of his lawyer and other lawyers appearing for other respondents that the warrant which was issued for 23-10-2009 was returned by him with his report on 20-10- 2009. His this submission was recorded as revealed in the order-sheet dated 25-3- 2010. If the same was returned by him according to his version on 20-10-2009, obviously there was no warrant of possession in his hand on 21-10-2009 when the delivery of possession is stated to have been made by breaking the lock. According to register of work-ticket, there is only one warrant of possession issued to him which according to his own version was returned to the Executing Court on 20-10-2009, itself. It was issued vide No. 286 as per register of work- ticket. Another warrant of attachment was issued vide No. 287 as per the register of work-ticket. Both are shown to have been handed over to respondent No. 4 on 20-10-2009 for execution as revealed in Register-B. In the warrant of possession bearing 286, there is, no note by the Executing Court that delivery of possession may be effected by breaking the lock. Instead, it has been mentioned by Naib Nazir that the judgment debtor requested for 15 days time which may be presumably to seek stay order from the High Court. It clearly goes to show that the judgment debtor was not avoiding the execution in contravention of law but was praying for time to seek requisite relief from the Hon'ble High Court. Since, the warrant of possession bearing No. 286 did not contain any order or direction of the Executing Court to effect delivery of possession by breaking lock, it is not gainsaid that the process server had no power to execute the warrant by breaking the lock. Even if the Executing Court vide later portion of the order dated 20-10-2009 directed for issuance of memorandum to Naib Nazir to effect delivery of possession by breaking the lock. In the absence of any note to this effect on the warrant of possession, Naib Nazir was not authorized/empowered to break the lock and deliver possession of the suit shop. Respondent No. 3 appears to have ignored all the aforesaid in order to get over stay order and provided undue benefit to the decree-holders by usurping his powers as Presiding Judge of the Executing Court.

17. As per the Register of work-ticket, warrant of attachment bearing No. 287 was in respect of recovery of decretal amount from movable property yet Naib Nazir due to over enthusiasm and over excitement in order to extend undue advantage has prayed vide endorsement on it's back that the order may he granted for delivery of possession by breaking the lock. Learned Executing Judge also with the same enthusiasm and over anxiety did not take note of such unwanted prayer on the warrant of attachment.

18. On 21-10-2009, judgment debtor submitted an application for urgent hearing as well as another application under section 151, Civil Procedure Code intimating thereby about grant of stay by the Hon'ble High Court in S.A. No. 544/2009 and made a prayer that proceeding of the execution may be stayed. It is a settled law that on receipt of such communication, the Executing Court shall lay its hands and stay the execution proceeding immediately forthwith. It thereafter could have asked for the reply. Instead, it granted 1/2 hour to decree- holders to submit reply. Decree-holder No. 2 himself was present at 3.30 P.M. in the Executing Court on 21-10-2009 when the case was not even fixed on that day. At 4 P.M. learned Executing Judge accepted the reply given in light of the report received from Nazarat section about delivery of possession at 2 P.M. on the same day. It is again un-understandable that when 23-10-2009 was fixed for submission of the report from Nazarat section, how and why, it was submitted on 21-10-2009 at 4 P.M. without having been summoned by the Executing Court. There is no mention in the order-sheet dated 21-10-2009 that the report from Nazarat section was requisitioned by the Executing Court. Accepting the reply and report of respondent No. 4, respondent No. 3 dismissed the application on the ground that possession of the disputed shop was already delivered to decree- holders in execution of the decree.

19. It is a specific submission of respondent No. 4 that warrant of possession was returned by him to the Executing Court on 20-10-2009. Learned counsel for respondents No. 3 and 4 have been unable to show that warrant of possession was issued after the same was returned on 20-10-2009 as per the statement of respondent No. 4 himself recorded before this Court on 25-3-2010. Respondent No. 3 is a responsible judicial officer and he is obviously under an obligation to follow process of law. He cannot be allowed to use his office to make the prospective order of superior Court valueless or ineffective or by allowing his subordinate to proceed in the impugned manner.

20. This Contempt Petition has been preferred by the applicant on the ground that the respondents have flouted the order of this Court passed in S.A. No. 544/09 on 21-10-2009. According to the applicant himself, the stay order was granted by this Court at about 2.30 p.m. or onwards. Though, there are ex facie number of irregularities and illegalities but the applicant has been unable to make out that possession of the suit shop was delivered to respondents No. I and 2 by respondent No. 4 after communication of the stay order to respondent No. 3. There is no cogent definite evidence on record to infer positively that the possession was delivered after having received the knowledge of the stay order issued by this Court. This being so, in the considered opinion of this Court, no contempt is found to have been made out. Consequently, the Contempt Petition is dismissed. Non applicants stand discharged.

21. This case appears to be a striking example of the working of the concerning Judicial Officer (respondent No. 3). Learned counsel for the respondents No. 3 as well as 4 have been unable to explain various illegalities as well as irregularities, which are revealed in the record. Such illegalities/irregularities do point out possibility of the nexus between the Presiding Judge and the beneficiary litigant in connivance with the executing machinery i.e. Naib Nazir. This Court may point out them in following manner : -

(i) Warrant of possession and warrant of attachment were directed to be issued on 8-10-2009 by the respondent No. 3. In the margin of the order sheet, they are shown to have been issued vide S. No. 286 and 287 dated 13-10-2009. They are shown to have been made over the Naib Nazir Salim Khan on 13-10-2009 under his clear signature, as revealed in Register-A. On 20-10-2009, judgment- debtor submitted an application that an appeal had already been prepared for being submitted before High Court Gwalior Bench, which could not be submitted on account of there being Diwali holidays upto 19-10-2009. Although Civil Appeal was dismissed on 29-9-2009 and a period of 90 days is prescribed for limitation, learned lower appellate Judge had no patience to grant time to the judgment-debtor on application having been moved in this regard on 20-10-2009. Surprisingly, the warrants, which were prepared on 13-10-2009, are shown to have been handed over to respondent No. 4 for execution on 20-10-2009, as revealed in Register-B. This obviously reflects upon the anxiety of the Presiding Judge to execute the decree before the Second Appeal could cone up for hearing.

(ii) On 20-10-2009 judgment-debtor submitted an application for urgent hearing praying thereby time for seeking stay from this Court. This was rejected and execution case was fixed on 23-10- 2009 for submission of report with regard to execution of warrant. Surprisingly, on the same day, learned respondent No. 3 reopened the execution case without there being an application for urgent hearing at the instance of decree holder's application for effecting delivery of possession by breaking the lock. There was no iota on record that Naib Nazir was summoned by the Executing Judge. There is no explanation in record that how and why the Naib Nazir without being summoned by the Executing Judge was present in the Court and how did the learned Executing Judge did entertain him without having been summoned.

(iii) In the later portion of the order sheet dated 20th October, 2009, learned Executing Judge after allowing the application of decree holder ordered that the memo be issued to Naib Nazir to effect delivery of possession by breaking the lock. No memo is found to have been issued by the learned Executing Judge. This point has been highlighted by the applicant in the contempt petition, more so in the light of the certified copy of the order sheet marked as Annexure F, which does not contain signatures of Naib Nazir in the margin. Surprisingly, the signatures are found to have been put subsequently and respondent No. 4 has also submitted an affidavit that he put his signatures on the order sheet. Learned Executing Judge is not shown to have taken any action in the matter, which goes to show that the learned Executing Judge intended to make up the deficiency of absence of issuance of memo of Naib Nazir by allowing him to put the signatures in the margin in antedated manner.

(iv) On 25-3-2010, Naib Nazir namely Salim Khan stated before this Court. as revealed in the order sheet in presence of his lawyer that warrant, which was issued to him for 23-10-2009, was returned by him with report on 20th October, 2009 to the Executing Court. There is no iota on record to show that the warrant of possession was reissued to the Naib Nazir for due execution. There is no endorsement of dispatch of warrant of possession in the execution file about having it been dispatched for execution. There is no material on record that when and in what manner it came into the hands of Naib Nazir for execution. Though, there is a mention in the order sheet dated 20th October, 2009 that memo may be issued to Naib Nazir, no such memo is found to have been issued. It is not understandable from the record that the warrant which according to the Naib Nazir was returned to the Executing Court on 20th October. 2009, how did it reach in his hands again for effecting execution on 21st October, 2009. Neither in the dispatch record nor in the record of Nazarat, there is any entry about warrant of possession having been received again. Thus, according to the record, the Naib Nazir (respondent No. 4) could not have the warrant of possession in his hands except with the express or implied consent/permission of the learned Executing Judge.

(v) There is report of respondent No. 4 dated 20th October, 2009, wherein it is mentioned that the respondent No. 4 visited the suit shop at 10 times. It was found to have been locked and the judgment-debtor was not found available at the shop. It is further mentioned in the report that the judgment-debtor appeared in the Court. He was asked to deliver possession, which was not accepted. instead 15 days' time was sought for delivery of possession. If the judgment debtor appeared in the Court, it was for the learned Executing Judge himself to ask him to deliver possession pursuant to the decree. It is not it function of Naib Nazir to ask judgment- debtor in it Court of law to deliver possession. His duty was to effect delivery of possession on the site as per warrant. Learned Executing Judge is not found to have mentioned in the later portion of his order dated 20th October, 2009 that period of 15 days in specific was sought for delivery of possession. Since Second Appeal was already prepared and was to be submitted on 20th October, 2009 and limitation of about 70 days was still there, as prescribed in law, it is inconceivable that what prompted the learned Executing Judge to reject the prayer for grant of time in non-judicious manner.

(vi) In the file of execution case there is change in page Nos. at page 39 and onwards upto page 62, which goes to show that pages in the file of execution case might have been re-arranged so that execution matter could have been brought in order.

(vii) Respondent No. 4 Naib Nazir, as per his report at page 45, stated that he effected the delivery of possession by breaking the lock, which was found on the suit shop. There is overwriting on the date below his signature at page 45. Earlier, it was 20-10-2009, whereas it has been changed to 21-10-2009. It suggests that this paper might have been prepared a day earlier.

(viii) Warrant of possession is at page 42, which contains no order of the Executing Court that possession of the suit shop was to be delivered in the absentia of the judgment-debtor or by breaking the lock, yet the respondent No. 4 has reported that he has effected the delivery of possession by breaking the lock as per the order. Since no such order was mentioned in the warrant of possession, how did the respondent No. 4 acquire powers to break open the lock without having been authorised under the warrant of possession. This is again not understandable from the record. This apart, it is again to be kept in mind that as per the statement of respondent No. 4 himself recorded on 25-3-2010, the warrant was returned by him to the Executing Court on 20-10-2009 with his report. Thus, it seems that respondent No. 4 while effecting delivery of possession, was not having warrant of possession with him as per his own statement.

(ix) Decree holders or their counsel as well as Naib Nazir were always available in the Court when the case was taken up for hearing even when the same was not already fixed for hearing.

(x) Applications of decree holders were entertained on such dates even without application for urgent hearing.

(xi) Execution file was requisitioned vide notice issued on 27-11-2009 which was received by this Court on 30-1-2010.

22. From the discussion made above and as reveale

d in the record, it seems that the warrant of possession was prepared and was received by Naib Nazir on 13-10-2009. On 20th October, 2009 when Executing Court was informed that the memo of appeal was prepared and was to be submitted before this Court and a reasonable time may be granted to seek stay against execution, the entire machinery of the Executing Court came into gear and tried, its best to give effect to the decree, against which 70 days' period was available to the judgment debtor as per limitation. It seems to be a game of the decreeholder in connivance with the Presiding Judge of the Executing Court and the Naib Nazir so that effort of the judgment-debtor may be made futile. On almost every occasion, the Naib Nazir used to keep himself present in the Executing Court without having been summoned. Learned Executing Judge also every time entertained him. According to Naib Nazir himself, the warrant was returned by him on 20-10-2009 to the Executing Court. The same is not found to have been reissued or handed over to- the Naib Nazir for execution. The Naib Nazir was allowed by the Executing Judge to put his signature on margin since no memo as per the order-sheet dated 20-10-2009 was issued. Despite there being no order on the warrant to effect the delivery of possession in absentia of judgment debtor or breaking the lock, possession to the decree holder is stated to have been delivered in such a manner. This perhaps is clearly suggestive of nexus between the decreeholder, Executing Judge and Naib Nazir, which is required to be enquired into by vigilance in order to achieve faith in judicial system. 23. In the case of Hoshiar Singh v. Gurbachan Singh, AIR 1962 SC 1089. it has been ruled that in the matter of a prohibitory order, it is well settled that it is not necessary that the order should have been served upon the party against whom it has been granted in order to justify committal for breach of such an order, provided it is proved that the person complained against had notice of the order aliunde. 24. Burden and standard of proof in the matter of Contempt of Courts Act has been explained by the Apex Court in the case of Chhotu Ram v. Urvashi Gulati, AIR 2001 SC 3468 in following words :- "As regards, the burden and standard of proof, the common legal phraseology "he who asserts must prove" has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the 'standard of proof', be it noted that a proceeding under the extraordinary jurisdiction of the Court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond all reasonable doubt." 25. It is true that as per the statement of Naib Nazir, the warrant was returned by him on 20th October, 2009. He is stated to have delivered possession even in the absence of record that warrant of possession was issued to him. Similarly, warrant of possession is stated to have been executed without there being an endorsement authorising the Naib Nazir to deliver possession in absentia or by breaking the lock however legal/illegal and/or regular/irregular it may be, it would not amount to contempt of Court in view of the decision of the Calcutta High Court in the case of Bimalapati Banerjee v. Sailendra Nath Ganguly, AIR 1956 Calcutta 249, wherein it is observed : - "If the bailiff, however, finds that there is opposition and resistance as is alleged on behalf of the defendant in the present case, if he considered that the opposition was such that possession could not be delivered without applying force, the rules of the Court provide that the bailiff has to return to the Court for being armed with necessary powers and help. It is for this reason that the bailiff has come out with the story which we have not accepted that peaceful possession had been delivered by him. The mistake on the part of the bailiff in using force, however, without being properly armed by an order of the Court does not make his offence a culpable one for contempt of Court. Such an offence comes under a different category with which we are not concerned in the present proceedings." 26. Keeping in mind the aforesaid legal principles, it is observed even at the cost of the repetition that there is no material on record to infer that possession of the suit shop was delivered after communication of the stay order granted by this Court on 21-10-2009 was received. 27. In the facts and circumstances stated hereinabove, no case is made out of wilful deliberate disobedience of order of this Court granting stay against the execution. This being so, respondents are not found guilty of contempt of Court in view of the law laid down in the case of Manish Gupta v. Gurudas Roy, AIR 1995 SC 1359 and therefore the contempt petition is hereby dismissed. Respondents stand discharged in contempt matter. However, in view of the drift of events mentioned hereinabove, Registry is directed to refer this matter to the Registrar Vigilance who shall enquire into the various aspects including those mentioned hereinabove. Considering the facts and circumstances, office is also directed to fix S.A. No. 544/2009 for final hearing in the next month. A copy of this order shall also be sent to the Portfolio Judge of respondent No. 3. who may consider it at the time of writing the A.C.Rs. of the concerning Judge. No order as to costs. Petition dismissed.