Satbir Singh and Others vs Inder Singh and Another

M.M. Kumar, J.—This is a revision petition directed against the order dated 23.3.2002 passed by the District Judge, Jind dismissing the appeal of the plaintiff-petitioners which was directed against the order dated 17.3.2001 passed by the Civil Judge (Jr. Division), Jind. The Civil Judge in his order dated 17.3.2001 has dismissed the application of the plaintiff-petitioners filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (for brevity ''the Code'') seeking interim injunction of execution of decree passed in an earlier suit.

Brief facts of the case disclosed in the pleadings of the parties are that the plaintiff-petitioners filed a suit seeking declaration that they are owner in possession of the suit land measuring 86 kanal 18 marlas according to the jamabandi for the year 1985-86 situated within the revenue estate of village Jalalpura Kalan. It has further been averred that the plaintiff-petitioners and proforma defendant-respondents are co-sharers andco-owners in the land and no formal or legal partition has taken place. The averments made in the suit further shows that Inder Singh, defendant-respondent filed a suit for specific performance of contract of some portion of the suit land measuring 8 kanals and that suit was decreed and even the appeal was dismissed. The afore mentioned decree passed in favour of Indere Singh is sought to be executed. A prayer has been made that since the land has not been partitioned, defendant-respondent Inder Singh cannot get actual physical possession in execution proceedings. Atongwith the suit an application under Order 39 Rules 1 and 2 of the Code was also filed which was declined by the Civil Judge on 17.3.2001 and the appeal against the afore mentioned order passed by the Civil Judge has also been dismissed by the District Judge by observing that it is for the executing Court to see whether the decree could be executed or not and the plaintiff-petitioners can very well file objections, if any, before the executing Court. The observations of the District Judge reads as under:-

"Learned executing Court is to see whether decree is for possession of specific killa number or not. Question for possession of vendor will also be considered by the executing Court. The plaintiffs may file objection, if any before the executing Court. After all sale deed etc. is to be executed in favour of defendant-respondent in whose favour decree for specific performance of contract has been passed and decree has been affirmed by Shri N.C. Nahata, then Addl. District Judge, Jind, vide judgment and decree dated 25.7.1998. Since 1991 defendant No. 1 has been contesting the litigation as civil suit No. 554 was instituted by Inder Singh on 14.10.1991. Defendant-respondent No. 1 is not doing any illegal act. He is proceeding in accordance with law and the executing Court is to see whether actual or symbolical possession is to be delivered. The executing Court is to interpret the decree passed in favour of defendant/respondent No. 1.

Thus, in my considered opinion, learned trial Court has rightly dismissed the application for temporary injunction and no interference in the impugned order is called for."

I have heard Shri Suresh Ahlawat, learned counsel for the plaintiff-petitioners and have perused the record with his assistance.

He has argued that in a suit for specific performance, he could not be permitted to be impleaded as a defendant and therefore his objection to the execution could also not be taken into consideration. He has relied upon a Division Bench judgment of this Court in the case Krishan Lal and Ors. v. Tek Chand and Ors. (1986) 90 P.L.R. 616 in support of his argument. That judgment is entirely different and moreover, the Supreme Court in Savitri Devi Vs. District Judge, Gorakhpur and Others, has been the view hat even the transferee lis-pendence can be impleaded as a party. In any case, it is for the Civil Court, who has entertained the suit to consider this aspect. The objection petition can always be filed by the plaintiff-petitioner in accordance with law and obviously the executing Court is bound to consider the same. There is neither any illegality nor any material irregularity warranting interferes in the order passed by the District Judge.

The revision petition is devoid of any merit and is dismissed.