Mohinder Ram vs Smt. Kartar Kaur and Another

Sat Pal, J.—By this judgment, I am disposing of two Civil Revision Petitions bearing C.R. No. 2294 of 1997 and C.R. No. 2295 of 1997 as the points of fact and taw raised in these, petitions are similar. C.R. 2294 of 1997 has been directed against the order dated 12.3.1997, passed by the Additional Civil Judge, (Sr. Division) Kurukshetra in Execution No. 10.8.95 and C.R. No.2295 of 1997 has been directed against the order of the same date passed in Execution No. 11.8.95. In both the petitions, the application filed by the Judgment Debtor for adjourning the Execution proceedings sine die has been allowed and the proceedings in both the execution cases have been adjourned. For the purpose of judgment, facts of C.R. No. 2294 of 1997 have been taken.

The admitted facts of the case are that the suit filed by the petitioner/decree holder for possession by way of pre-emption of the land in dispute was decreed vide judgment and decree dated 11th February 1992. The appeal fifed by the respondent-Judgment debtor was dismissed by the lower appellate Court on 31st August, 1994. The second appeal filed by the J.D. was dismissed by this Court on 10.2.1995. Even the SLP filed by the J.D. was dismissed on 21.7.1995 and Review Petition against the aforesaid order was also dismissed by the Supreme Court on 30.7.1995. After the SLP filed by the J.D. was dismissed in the Supreme Court the petitioner/decree holder instituted execution proceedings before the learned Executing Court. The respondent/J.D. filed objections before the Executing Court which were dismissed on 5.4.1996. Thereafter, the judgment-debtor/respondent filed the revision petition bearing C.R. No. 1408 of 1996 which was dismissed on 9.10.1996. The aforesaid order dated 9.10.1996 has been challenged by the J.D. in the Supreme Court.

These petitions came up for hearing on 2.12.1997 and on that day, the learned counsel appearing on behalf of the judgment debtor/respondent stated that the SLP filed by the J.D. against the above mentioned order dated 9.10.1996, has been admitted by the Supreme Court. He further submitted that the notice regarding stay had also been issued but the exparte stay was not granted. At the request of the learned counsel of the J.D. the case was adjourned on 2.12.1997 for 11.12.1997 to enable the J.D. to produce the order of stay, if granted by the Supreme Court. On 11.12.1997, against at request of learned counsel of the J.D./respondent, the case was adjourned to 16.12.1997. Thereafter, at the request of learned counsel for the J.D. the case was adjourned to 22.12.1997; then to 24.12.1997 and again for 7.1.1998. Finally the case was taken up for arguments on 8.1.1998.

Mr. Sanjeev Gupta, learned counsel appearing on behalf of the J.D./respondents submitted that as per his instructions, stay had not been granted by the Supreme Court but the application seeking stay has been ordered to be heard along with the main case. It was in these circumstances that arguments were heard on merits of these petitions.

Mr. Gupta, learned counsel for the J.D./respondent drew my attention to Order 41, Rules 6 and 8, C.P.C. and submitted that where an order has been made for the sale of immovable property in execution of a decree and appeal was pending from such decree, the sale, on the application of the judgment debtor to the Court, would be stayed on such terms as to giving security or otherwise until the appeal is disposed of. He, therefore, contended that since the appeal filed by the judgment debtor in the execution proceedings was pending in the Supreme Court, the impugned order passed by the learned executing Court was legal and valid. In support of his submission, he placed reliance on two judgments of this Court in Raj Kumar v. Dalip Singh 1992 H.R.R. 342 and Raunki Ram Bir Chand and Another Vs. Aggarwal Textiles, .

The learned counsel further submitted that the point raised by the J.D./respondent before the Supreme Court was that the decree in the present case was a nullity and such point could be raised in execution. In support of his submission, he placed reliance on a judgment of the Supreme Court in Kesar Singh and Ors. v. Sadhu 1996 (2) ICC 435. He also submitted that the point raised by the J.D. in the Supreme Court has been referred to a larger Bench and it would be appropriate that till the decision is rendered by the larger Bench of the Supreme Court, proceedings before the Executing Court should remain stayed. In support of this submission, he placed reliance on a judgment of the Supreme Court in U.P. Rashtriya Chinni Mills Adhikari Parishad, Lucknow Vs. State of U.P. and others,

Mr. Saini, learned counsel appearing on behalf of the petitioner/decree-holder, however, submitted that the provisions of Order 41, Rules 6 and 8, C.P.C., are not applicable to the facts of the present case as in the present case, the suit filed by the petitioner was for possession by way of pre-emption and in execution of the decree, no immovable property is to be sold.

I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the impugned orders. As stated herein above, the suit filed by the petitioner/decree-holder for possession by way of pre-emption was decreed in February, 1992 and the judgment passed by the learned trial court decreeing the suit has been upheld upto the Supreme Court. In the execution proceedings, the objections, filed by the J.D. were dismissed on 5.4.1996 and the order of the learned executing Court dismissing the objections of the J.D. was upheld vide judgment dated 9.10.1996 in C.R. 1408 of 1996. It is correct that SLP against the aforesaid judgment dated 9.10.1996 has been admitted by the Supreme Court but the Hon''ble Supreme Court has not granted any stay in favour of the J.D. though an application for the same was filed by the J.D. The learned counsel of the J.D. himself on instructions has stated that no stay had been granted by the Supreme Court so far and the application for stay had been ordered to be heard along with the main case. As stated in the earlier part of the judgment, the case was adjourned on many occasions to enable the J.D. to approach the Supreme Court to get any stay but the J.D. has not been able to get any stay from the Supreme Court. Keeping in view these facts, I am of the opinion that the impugned order dated 12.3.1997 cannot be sustained.

As regards the contention of the learned counsel of J.D./respondent, that Under Order 41, Rules 6 and 8, C.P.C., the execution proceedings have to be stayed, I do not find any merit in this contention. A bare reading of these provisions would show that Order 41, Rules 6 and 8, C.P.C. are applicable in a case where, any immovable property in execution of a decree was being sold. In the present case, the suit for possession has been decreed and in execution of the decree, the decree-holder would get the possession of the suit land. However, to protect the interest of J.D. till the decision is rendered by the Supreme Court, I am of the opinion that the decree-holder should be restrained from alienating the suit property. Since I have come to the conclusion that the provisions of Order, 41, Rules 6 and 8 are not applicable to the facts of the present case, the judgment of this Court in the case of Raj Kumar (supra) and M/s Raunqi Ram Bir Chand (supra) shall not apply to the present case. As regards the judgment of Kesar Singh (supra), it is correct that the plea of nullity of decree can be even raised in execution proceedings but this point is not in issue in this case. The decision of the Supreme Court in U.P. Rashtriya Chint Mill Adhikar Parishad (supra) is also not applicable to the facts of the present case as in this case the judgment and decree passed by the learned trial Court has been upheld by the Supreme Court vide order dated 21.7.1995 and even the review petition filed by the J.D. against this order was dismissed by the Supreme Court on 30.7.1995.

For the reasons recorded herein above, both the petitions are allowed and the impugned orders dated 123.1997, passed by the learned Executing Court in Execution Petition No. 10.8.95 and 11.8.95 are set aside. It is, however, directed that the petitioner/decree-holder after execution of the decree, shall not alienate or part with possession of the suit land till the decision is rendered by the Supreme Court in the appeal filed by the J.D. which is still pending in the Supreme Court.

With the above directions, both the petitions stand disposed of.