Kishan Chand and Others vs Piara Singh and Another

L.N. Mittal, J.—Legal representatives (LRs/DHs) of original decree holder (DH) Vidya Wati have filed this revision petition under Article 227 of the Constitution of India impugning judgment dated 03.03.2006 Annexure P-8 passed by lower Appellate Court. The dictum that problem of decree holder starts after passing of decree in his favour is amply demonstrated by this case. Suit filed by Vidya Wati against respondent no. 1-Piara Singh-judgment debtor (JD) for possession of 4 marlas land in suit being part of khasra no. 292 was decreed by the trial Court vide judgment and decree dated 27.01.1990 Annexures P-1 and P-2 as upheld in first appeal preferred by respondent no. 1-JD vide judgment and decree dated 04.02.1992 Annexures P-3 and P-4.

DH filed execution petition for execution of the aforesaid decree. JD filed objections Annexure P-5 alleging that the property in question is owned by Government of Punjab, which is owner of entire khasra no. 292 measuring 3 kanals 5 marlas including the suit land measuring 4 marlas because it belongs to rehabilitation department and, therefore, the Civil Court which passed the decree, had no jurisdiction to pass it.

DH by filing reply Annexure P-6, controverted the averments of the JD raised in the objections. It was inter alia pleaded that executing Court cannot go behind the decree.

State of Punjab-respondent no. 2 also filed similar objections as those preferred by the JD. Respondent no. 2 alleged that Basanti-mother of DH was owner of entire 3 kanals 5 marlas land of khasra no. 292 including the suit land. She sold 3 kanals land out of it to Muslims vide three sale deeds dated 02.06.1947 and the remaining 5 marlas land was covered by path and therefore, the entire land including suit land being evacuee property vested in custodian and came to State of Punjab as package deal property.

Learned executing Court vide order dated 05.03.2003 Annexure P-7 dismissed the objections preferred by respondent no. 1-JD as well as by respondent no. 2 State of Punjab. Respondent no. 2 did not prefer any appeal against the said order which, therefore, attained finality qua respondent no. 2. However, respondent no. 1-JD preferred appeal against order u/s P-7 passed by the executing Court. The said appeal ha been allowed by the lower appellate Court vide judgment dated 03.03.2006 Annexure P-8 and objections Annexure P-5 filed by respondent no. 1-JD have been allowed and execution petition filed by DH has been dismissed. Feeling aggrieved, LRs of original DH have filed this revision petition to challenge judgment Annexure P-8 passed by the lower Appellate Court.

I have heard learned counsel for the parties and perused the case file.

Counsel for the parties reiterated their respective versions noticed hereinbefore. I have carefully considered the matter. As noticed hereinbefore, dismissal of objections preferred by respondent no. 2-State of Punjab by the executing Court vide order Annexure P-7 attained finality because State of Punjab did not prefer any appeal against the said order. As regards respondent no. 1-JD, he had no right to raise any such objection in the execution proceedings because he could have raised any such objection during trial of the suit. In the suit, it was held that DH was owner of the suit land. The said finding has attained finality qua respondent no. 1-JD. Consequently, in execution proceedings, the JD could not have raised objection that DH was not owner of the suit land.

In addition to the aforesaid, mother of DH had sold only 3 kanals land out of 3 kanals 5 marlas land of khasra no. 292. The plea of State of Punjab that the remaining 5 marlas land was covered by path was negatived by the executing Court by observing that the path was of 8 feet width as per sale deeds in question and therefore, it cannot be said that the entire remaining 5 marlas land was covered by path. The suit land is only 4 marlas. Consequently, it cannot be said that the suit land had also been sold by Basanti Devi-mother of DH, to the Muslims. Thus for this reason also, the objection raised by respondents cannot be accepted. Length of the passage is not mentioned in the sale deeds. It was sought to be supplemented by way of some site plan wherein length of the passage was depicted to be 110 feet. However, even land measuring 8 feet X 110 feet would not come to 5 marlas. It would come to about 3 marlas only. Consequently, it cannot be said that Basanti Devi had sold the entire land of khasra no. 292. Moreover, the alleged passage had not been sold to the Muslims and so the land of alleged passage was not evacuee property and therefore, did not vest in State of Punjab as package-deal property. At the risk of repetition, it may be highlighted that dismissal of objections of State of Punjab by executing Court attained finality. Respondent no. 1-JD has no locus standi to prefer the aforesaid objections because he could raise the same during trial of the suit. It is also not proved that entire land of khasra no. 292, including the suit land, had been sold by the DH. For the reasons aforesaid, I find that impugned judgment of the lower Appellate Court allowing objections preferred by respondent no. 1-JD is illegal and suffers from jurisdictional error. Respondent no. 1-JD has tried to obstruct the execution of the decree without any justification. Resultantly the instant revision petition is allowed. Impugned judgment Annexure P-8 passed by the lower Appellate Court is set aside. Order Annexure P-7 passed by the executing Court, dismissing objections of both the respondents, is restored. The executing Court shall now proceed with the execution proceedings in accordance with law as expeditiously as possible. Counsel for the parties are directed to appear before the executing Court on 19.08.2013.