Siri Chand vs Jug Lal and Others

M.M. Kumar, J.—This is a revision petition directed against the order dated 5.1.2002 passed by the Civil Judge (Jr. Divn.) Sirsa rejecting the application for calling back the warrant of possession issued by the executing Court and also to stay its'' implementation. The decree holder-respondent has filed the application seeking execution of judgment and decree dated 17.5.1996.

Brief facts of the case are that the decree holder-respondents filed a civil suit No. 1044 of 1993 against 12 persons including the judgment debtor-petitioner Siri Chand. The suit was contested by all the judgment debtor-respondents No. 3 to 21 or their predecessors-in-interest except judgment debtor-respondents No. 18 and 20 Gird-hari Lal and Puran. However, a decree was passed on 17.5.1996 for delivery of possession of land measuring 5 kanals 12 marlas situated in village Anniawali Tehsil and district Sirsa. Against the afore-mentioned judgment and decree, the judgment debtor-petitioner filed an appeal which was dismissed on 5,9,1997. The execution application has been filed by decree holder-respondents No. 1 and 2 for execution of decree dated 17.5.1996 as upheld by the appellate court. The executing court has issued warrant of possession against the judgment debtor-petitioner and other judgment debtors. The judgment debtor-petitioner filed an application seeking recalling of the warrant of possession on the ground that judgment and decree dated 17.5.1995 in respect of which decree holder-respondents No. 1 and 2 filed an execution application has been challenged by the judgment debtor-petitioner in a suit titled Siri Chand v. Jug Lal etc. In that suit, an application under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (for brevity, the code) for staying the implementation of the decree has also been filed. Therefore, it is claimed that the execution of judgment and decree dated 17.5.1996 should be stayed. The Civil Judge after detailed consideration and hearing the rival contentions, dismissed the application and recorded the following order;

"After hearing the rival contentions of both the learned counsel for the parties and perusing the record of the case very carefully and minutely, I am of the considered opinion that the present application should be dismissed as decree-holders filed a suit for possession against the defendants which was decreed on 17.5.1996. In that case applicant was defendant No.12 but that case was contested by defendants No. 1 to 7.9 to 11 and defendant No 8, 10 and 12 were exparte, After passing of the judgment and decree dated 17.5.1996 judgment debtors filed an appeal which was dismissed by the court of Sh. Ramindra Jain, Ld. Addl. Sessions Judge, Sirsa vide order dated 5.9.1997. The proceedings of the present execution cannot be stayed merely on the asking of judgment debtor unless he shows some cogent reason behind it.

It is pertinent to mention here that earlier Shri Trilok Chand one of the JD has already been filed objections under Order 21 Rule 29 CPC which was dismissed vide order dated 7.1.2001. In this case there are 12 Judgment Debtors. If such type of objections are entertained then there will be no end of the litigations. Judgment Debtors be filed objections one by one. This is the second objection filed by the Judgment Debtor. When number of Judgment Debtors have already availed their remedy for filing of appeal then applicant would not be allowed to interrupt the execution proceedings again. Hence ! find no reason for calling back the warrant of possession issued in the case or its implementation be stayed."

I have heard Sh. K.K. Garg, learned counsel for the judgment debtor-petitioner who has argued that once the judgment debtor-petitioner has challenged the judgment and decree dated 17.5.1996 in a separate suit and also filed an application for staying the execution of the afore-mentioned decree then to proceed with the execution of that decree is unwarranted. He has also pointed out that impositions of exorbitant cost of Rs. 3,000/- is also illegal. It has been argued that the executing court has committed material irregularity and illegality in exercise of its jurisdiction. Therefore, the impugned order dated 5.1.2002 is liable to be set aside.

Having heard the learned counsel for the judgment debtor-petitioner and perusing the record, I have reached the conclusion that this revision petition completely lacks merit and is thus, liable to be dismissed because the judgment debtor-petitioner had challenged the judgment and decree dated 17.5.1996 in appeal before the Additional District Judge, Sirsa and the same had been dismissed on 5.9.1997. Moreover, the suit was originally contested out of 12 defendants by at least 9. The objections filed by one of judgment debtor-petitioner respondent No. 17 Tirlok Chand under Order XXI Rule 29 of the Code were dismissed. Therefore, there is no substance in the application filed by the judgment debtor-petitioner seeking setting aside of the warrant of possession and staying of the judgment and decree dated 17.5.1996 merely on the ground that a suit has been tiled for setting aside the judgment and decree dated 17.5.96. The application has been rightly dismissed by the executing court and there is neither any illegality nor any irregularity warranting interference by this court u/s 115 of the Code.

For the reasons recorded above, this revision petition fails and is dismissed.