Chain Singh vs Mohar Singh and Another

Swatanter Kumar, J.—CM No. 841 VCII/99.

This is an application praying for early hearing of the revision petition (CR No. 2352 of 1993). Learned counsel appealing for the applicants as well as non-applicant intended 10 address the arguments at length for justifying their request for early hearing.

Resultantly, with the consent of learned counsel for the parties, revision petition is taken up for hearing.

As the revision petition itself has been taken up for hearing, the present application does not survive and the same is disposed of.,

CR No. 2352 of 1993.

Vide order dated 24.5.1993, learned Additional Senior Sub Judge, Nakodar, dismissed the objections filed by the objector u/s 47 of the Code of Civil procedure. Aggrieved from the said order, the present petitioner (objector before the executing Court) has filed this revision. The objector has claimed that he had purchased land measuring about 7 kanals 4 marlas forming part of khasra No. 23/2/2" (7K-4M) situated in village Angi Keri, Tehsil Nakodar, from Smt. Krishna Wanti vide registered sale deed dated 13.10.1986. He further claimed that he was in possession of the land being owner thereof and thus he cannot be dispossessed in execution proceedings. The objections were contested by the decree holder as to the maintainability of the objections as well as on merits. The alleged sale being after the date of the decree, is ineffective and the objections filed by the objector were malafide.

Learned counsel appearing for the petitioner contended that the learned execution court ought to have framed issues and could dismiss the objections only after permitting the parties to lead their evidence, he further contended that he could raise such pleas and objections only by filing the objections and not by instituting a fresh suit and all questions were required to be decided as per the scope of Rule 101 of Order 21 of the Code of Civil Procedure. For this purpose, he placed reliance upon the judgment of this Court in the case of Jeet Singh and Others Vs. Mohan Singh and Others, . On the other hand, learned counsel appearing for the respondents (decree holders) relied upon the judgment of this Court in the case of Usha Devi Vs. Parshadi Lal and Another, to contend that the objections could be dismissed summarily being frivolous. He further contended that there was no legally acceptable right to the decree holder founded on principles of lis pendens.

In order to appreciate the merit of the respective contentions raised by the counsel for the parties, reference to few admitted facts would be necessary. An agreement to sell 30 Kanals 3 marlas of land in village Angi Keri was entered into between the decree holder and Daya Nand in the year 1980. The decree holder filed a suit for specific performance and possession of the suit land which was decreed by the learned trial Court vide its judgment and decree dated 28.7.1983. The defendant, in the suit preferred an appeal which was also dismissed by the learned first appellate Court vide its judgment and decree dated 14.8.1986, which became final between the parties. The execution of this decree was filed by the decree holder in the year 1991 in execution application No. 51 of 1991. The objections filed by the present petitioner were dismissed on 24.5.1993 and since then the matter is pending before the Court.

The alleged sale deed, on the basis of which the petitioner-objector is claiming his right, is dated 13.10.1986. Thus, it is even after the decree in favour of the decree holder had been upheld by the learned first appellate Court. Another undisputed important fact is that the objector had filed a suit in the year 1987, which was dismissed as withdrawn without seeking permission of the Court to take such appropriate steps as are permissible in law. Unconditional withdrawal of the suit without the leave of the Court in any case cannot be a factor which would tilt in favour of the objector.

The contention of the petitioner that the Court has no jurisdiction to dismiss the objections without recording the evidence does not have any merit. It would always depend on the facts and circumstances of each case. Where the objections at the face of it are frivolous, mala fide and are intended to obstruct the process of law, there is no restriction on the powers of the Court to summarily reject such objections. In the case of Usha Devi (supra) the Court held as under:-

"5. The objections filed by the objector are frivolous and intended to delay the process of law. The decree holder has not been able to enjoy the fruits of the decree which was passed in his favour as far back as on 8.11.1990. In fact the objections of the present kind ought to be rejected right at the threshold as being abuse of the process of law. Reference in this regard can be made to the judgment of this Court in the case of Gurdev Singh and Another Vs. Punjab National Bank and Others, , wherein it was held as under:-

"Altering the terms of the decree must be clearly understood in contract of construing a decree or interpreting a decree or giving clarity to its terms and conditions. In the garb of the latter, the Court cannot create a new decree which is neither intended nor passed by the Court of competent jurisdiction. Executing Court can provide clarity, interpret or construe the decree, while keeping the decree as passed by the Court of competent jurisdiction intact and undisturbed. While exercising its jurisdiction if the executing Court in the guise of the ingredients materially alters the terms and conditions of the decree to the prejudice of any of the parties to the decree which ought to have, if at all, falls in the domain of Courts of competent jurisdiction i.e. appellate or the Court that passed the decree, certainly, the executing Court would outguess its jurisdiction as an executing Court."

In this regard reliance can also be placed on the judgment of this Court in Rocky Tyres and Others Vs. Ajit Jain and Another, wherein it was observed as under:-

"It is settled principles of law that it is not incumbent upon the executing Court that it must put to trial every objections which are filed in any execution proceedings, even if prima facie they appear to be frivolous, vexatious and are only intended to delay the execution and frustrate the process of law or where it amounts to an abuse of the process of the Court. In this regard, reference can be made to a judgment of this Court in Execution Second Appeal No. 2333 of 1996, Bhagwan Singh and Ors. v. Parkash Chand, decided on 7.11.1996 .... Thus the cardinal principle of law that follows is that the purpose of granting an opportunity to prove his case to an objection while entertaining objections u/s 47 read with Order 21, Rules 97 to 108 of the CPC does not amount to permission for abusing the process of law or Court. The discretion must be exercised by the Court in such cases. Of course discretion is governed by settled judicial principles and must be exercised within four corners of law but such a discretion cannot be termed as a mere routine exercise of judicial discretion. Either way it should be for well founded and settled principles of governing the subject."

The objector can hardly be termed as a bona fide purchaser without notice. After all, long litigation in relation to an immovable property in a village would hardly remain to be a secret. The objections are certainly void of any merit, as alleged sale deed is subsequent to the time when the decree was passed and even was affirmed by the learned first appellate court. The attempt of the objector and the judgment debtor to frustrate the decree of the Court by incorporating small part of the said land in a transaction in favour of the objector under the sale deed dated 13.10.1986 is nothing but an attempt to obstruct the due process of law. A decree holder cannot be compelled to wait for years and years to enjoy the fruits of the decree which have come in his favour after a prolonged litigation.

For the reasons aforestated, I am unable to see any error of jurisdiction or otherwise in the impugned order passed by the learned executing Court in dismissing the objections filed by the objector.

Resultantly, the present revision is dismissed. However, there shall be no order as to costs.