Dalip Singh vs State of Punjab and Others

M.M. Kumar, J.—The short question which falls for consideration in this revision petition filed u/s 115 of the Code of Civil Procedure, 1908 (for brevity the Code'') is whether the application filed under Order22 Rule 5 of the Code after the death of the decree holder during execution proceedings arising out of a reference under the Land Acquisition Act, 1894 (for brevity ''the Act'') is to be decided by the Civil Court or by the Executing Court itself?. This question has been raised while impugning the order dated 2.12.2000 passed by the District Judge, Rupnagar. In his order, the District Judge has taken the view that the dispute is to be decided by the Civil Court,

Facts of the case necessary for deciding the controversy raised in this petition are that a land reference was decided by the District Judge, Rupnagar on 2.2.-1993 and compensation was awarded to one Atma Singh. After the decision on the reference, Atma Singh died on 12,6,1993 and two persons moved application claiming that they are legal heirs/representatives of the deceased Atma Singh. One application was filed by Dalip Singh son of Sunder Singh claiming that he is the legal representative of deceased Atma Sing On the basis of the Will dated 28.8.1992. Another application was filed by Bhajan Kaur daughter of Inder Kaur and Baldev Singh son of Inder Kaur (Inder Kaur is the sister of deceased Atma Singh), On the basis of the claim made by Dalip Singh, Bhajan Kaur and Baldev Singh in their respective applications, the District Judge took the view that it is only the Civil Court which could decide this issue as the Tribunal has limited jurisdiction. On that score alone, the applications were dismissed on 2.12.2000 by directing the parties to fill appropriate proceedings in the Civil Court. Feeling aggrieved by the afore mentioned order, Dalip Singh has approached this Court asserting that it is for the executing. Court to decide this question and it cannot be sent to the Civil Court for decision.

I have heard Shri Naresh Kaushal, Advocate for the applicant-petitioner and Ms. Manisha Berry, Assistant Advocate General, Punjab for the non-applicant-respondent.

Earned counsel for the petitioner has argued that the application under Order 22 Rule 5 of the Code should be decided for the purpose of bringing on record the legal representatives of the deceased and decree holder and if any one of them feels aggrieved by the order passed by he executing Court then he can seek his remedy in accordance with law. For the afore mentioned proposition, he has placed reliance on the following judgments of this Court namely Tarsew Dass v. Durga Dass. 1989 P.L.J.477 and Deepinder Kaur v. State of Haryana 1991 P.L.J. 534.

On the other hand, learned counsel for the non applicant-respondents submitted that once there is a serious dispute as to the entitlement to be imp leaded as legal heir then the proper course open to the applicant-petitioner is to file a suit seeking declaration of the right.

Having heard the learned counsel for the parties and perusing the record, I am of the considered opinion that the judgments cited by the learned counsel for the applicant-petitioner fully supports the proposition that the executing Court including the Tribunal under the Act would be obliged to decide the application filed under Order 22 Rule 5 of the Code because such a determination is not likely to operate as resjudicata between the parties or their successor in interest in any subsequent proceeding. In this regard, the view taken b the Full Bench of this Court in the case of Mohinder Kaur and Another Vs. Piara Singh and Others, can be referred to. The Full Bench has taken the view that in no case a decision under Order 22 Rule 5 of the Code would operate as resjudicata between the same parties their successors in another other subsequent proceedings even when the said parties had been provided an opportunity of contesting the issue and leading evidence thereof. Even the judgment in the case of Tarsem Dass ''s case (supra) has placed reliance on the Full Bench decision in Mohinder Kaur''s case (supra). The matter having been settled by this Court, I am of the firm opinion that the order dated 2.12.2000 passed by the District Judge, Rupnagar cannot be sustained and is liable to be set aside.

For the reasons recorded above, this revision petition succeeds. The order dated 2.12.2000 passed by the District Judge, Rupnagar, is set aside with a direction to him to decide the applications filed under Order 22 Rule 5 of the Code. It would be appreciated if a final decision is taken on the applications filed by Dalip Singh, Bhajan Kaur and Baldev Singh as expeditiously as possible and preferably within a period of six months from the date of receipt of copy of this order.