Daya Chand vs Harpal Singh and others

Kanwaljit Singh Ahluwalia, J.—Present revision petition has been filed praying that the orders dated 14th August, 2006 and 23rd January, 2009 passed by Civil Judge (Junior Division), Mohindergarh and Additional District Judge, Narnaul respectively be set aside.

It is not disputed that Nand Kishore had filed a Civil Suit No.805 dated 18.09.1982 against Harpal Singh and others seeking the relief of permanent injunction. The said suit was decreed by the trial Court on 28th July, 1988 and the appeal filed by defendant to that suit was dismissed by the District Judge, Namaul on 15th January, 1990.

The petitioner herein had purchased the land in question from Nand Kishore vide a registered sale deed dated 10th April, 1991. The petitioner had put up a claim that he had purchased 2/3rd share of Nand Kishore out of the land measuring 1 Kanal 5 Marias comprised in Khasra No.218/1 whereupon Nand Kishore had built his house. As per the site plan attached, this area has been depicted as ''ADKJ''. This site plan was made a part of the earlier suit titled as ''Nand Kishore v. Harpal Singh''. The petitioner herein had set out a case that after purchase of the land in question, he stepped into the shoes of Nand Kishore and filed an application under Order XXI Rule 32 CPC praying that the respondents be sent to civil imprisonment for not complying with the decree of the Court. The Executing Court vide impugned order dated 14th August, 2006 dismissed the application filed by the petitioner on the following grounds:

That the judgment passed in earlier suit titled as ''Nand Kishore v. Harpal Singh'' is a judgment in personam and not in rem.

That the decree of earlier suit was not assigned to the petitioner herein and thus, he cannot pursue the execution application.

That the appellate Court had dismissed the appeal filed by the defendant on 15th January, 1990.

Therefore, the period of limitation will come to an end on 15th January, 2002. Thus, the application filed by the petitioner on 10th September, 2003 was barred by limitation.

These findings have been upheld by the lower appellate Court.

Mr. Ajay Jain, Advocate appearing on behalf of the petitioner has assailed the impugned orders, inter-alia, on the following grounds:

(i) Once the petitioner had purchased the land from Nand Kishore, his possession over the suit property was well defined and qua that suit land, it stood determined that respondents cannot cause interference, having been restrained by the Court of law. Therefore, rights of the parties stood determined qua the land and the petitioner is none else but a subsequent purchaser, who would ipso-facto step into the shoes of Nand Kishore. Taking this argument forward, it is stated that purchase of suit land in itself depicts that the rights which had flown to Nand Kishore qua the suit land shall also automatically vest in the petitioner. Thus, specific assignment of the decree was not required.

(ii) Secondly, it is stated that as per Article 136 of the Limitation Act 1963, for enforcement of the decree for permanent injunction, no limitation is prescribed.

Mr. N.S. Shekhawat, Advocate appearing for the respondents, has relied upon ''Kedar Ram v. Additional District Judge-II, Ballia, 2005 (1) RCR (Civil) 135 (All), to contend that the purchase of property and assignment of the decree are distinct and until the decree is assigned specifically, no benefit of decree shall accrue to the petitioner-subsequent purchaser.

I have perused the judgment rendered in Kedar Ram''s case (supra). Same is qua the decree for possession of the property passed in favour of the owner. It was specifically stated that a right which has to accrue in future, the decree has to be assigned. Furthermore, it was held in the aforesaid judgment, that instead of Order XXI Rule 16 CPC, remedy shall be available to the subsequent purchaser u/s 146 CPC. Even otherwise, the facts of the case relied upon by counsel for the respondents are different. In that case, execution application filed by the decree-holder was already dismissed. Therefore, it was held that the subsequent purchaser, not being am assignee, could not revive the execution application.

Mr. Jain has submitted that the matter of fact is that the petitioner had purchased the property and the owner of the property had obtained an injunction qua the respondents restraining them from interfering in the possession over the suit property.

I find, merit in the contention raised by the counsel that once respondents have been restrained not to interfere in the possession of suit properly, later by change of ownership, now a right will not vest in the respondents to cause interference. Purchase of property by way of registered sale deed was assurance to the subsequent purchaser i.e. petitioner, that possession of seller qua the respondents is well defined and they will not cause interference in the suit property for times to come. Filing of fresh suit by the petitioner, to start another round of litigation, is in the interest of none. It will not only burden the judicial system, but shall also elude all concerned with the finality of rights qua the suit property.

At this juncture, Mr.Shekhawat has stated that the counter objections filed by the respondents in reply filed to the application have not been dealt with by the trial Court. Counsel has stated that it was incumbent upon the trial Court to deal with the objections raised by the respondents. Mr.Shekhawat has stated that it was specifically pleaded by the petitioner that the respondents had constructed a house on the suit property before its purchase by the petitioner. Counsel has further stated that even the respondents had disputed the sale deed executed in favour of the petitioner. Therefore, these two issues arc also required to be decided by the Executing Court.

Counsel for the parties are in agreement that the matter can be remanded back to the Executing Court to decide it afresh considering the objections raised by the respondents also.

In view of the joint submission made by counsel for the parties, impugned orders dated 14th August, 2006 and 23rd January, 2009 are set aside and the matter is remitted back to the Executing Court to decide it afresh in view of the observations made above. Till the matter is decided afresh by the Executing Court, interim order dated 11th February, 2009 shall continue. The parties through their counsel are directed to cause appearance before the trial Court on 17th October, 2011.

With the observations made above, present petition is disposed of.