CIVIL APPEAL 2568 of 2006 on 24 September 1991

1. Whether Reporters of local papers may be allowed to see the judgement?2. To be referred to the Reporters or not?2. To be referred to the Reporters or not?

3. Whether the judgment should be reported in the Digest?

PRESENT:Mr. Ashish Aggarwal, Advocate, for the petitioner.

Mr. Jagdish Manchanda, Advocate,for the respondents.

****

RANJIT SINGH, J.

Prayer is of setting-aside of the order rejecting theobjection petition filed by the petitioner by the Executing Court.

A decree dated 24.9.1991 is passed in favour of thepetitioner. The petitioner thereafter filed an execution application andpossession of the land was delivered in his favour on 23.1.2003. Theexecution petition was accordingly dismissed on 29.3.2003 as havingbeen fully satisfied. The decree in favour of the petitioner waschallenged by one Bhagwan Dass in a separate suit on 1.6.1993.This suit was, however, dismissed as withdrawn on 4.11.1999.

Another suit was filed by Madan Lal Vs. Deva Ram, which wasdecreed on 15.11.1990. The possession of the suit land wasdelivered to respondent No.2, Madan Lal. In execution of a decreedated 15.11.1990 in favour of Madan Lal (respondent No.2),Bhagwan Dass, respondent No.1, filed objections, though he was nota party to the said suit, alleging that the suit land comprised ofRectangle No.462, Killa No.13, was for 3 kanals, whereas inexecution, the possession of entire Killa No.13 i.e. 8 kanals wasdelivered in favour of the decree holder. This 5 kanals of land is thesame, possession of which was delivered in execution of a decreedated 24.9.1991, which had been challenged by Bhagwan Dasshimself by way of a separate suit but had got the same dismissed aswithdrawn as already noticed. Though Bhagwan Dass has admittedpossession of the petitioner over this 5 kanals of land but concealedthis fact of earlier proceedings while filing objection to the executionproceedings of the decree in favour of respondent No.1. He, thus,obtained an order of restoration of possession of 5 kanals of land,claiming himself to be the co-owner. When respondent No.1 appliedfor issuance of warrant of possession, the petitioner came to knowabout the above proceedings and filed objections on 22.7.2003,bringing out all the facts as afore-mentioned. These objections havenow been dismissed, which are impugned through the presentrevision petition.

I have heard the learned counsel for the parties.

Mr.Ashish Aggarwal, counsel appearing for the petitioner, is justified in saying that the objections filed by the petitioner couldnot have been dismissed as not maintainable and a fact that

respondent No.1-Bhagwan Dass had earlier filed a suit qua thesame land against the petitioner, which was got dismissed aswithdrawn on 4.11.1999 can not be ignored. This fact would showthat respondent No.1 was fully aware of decree in favour of thepetitioner i.e. Annexure P-1, which he has challenged by filing a suit,copy of which is annexed as Annexure P-3. This suit was withdrawnafter six years of its institution. This fact was required to be disclosedby respondent No.1 in the subsequent proceedings that took place inthe year 1997-98. This aspect of the objections raised by thepetitioner in this background could not have been summarily rejectedas has been done by the Executing Court. The counsel for thepetitioner refers to the provisions of Order 21 Rule 101 CPC,providing that all questions including that of right, title or interest inthe property between the parties to the proceedings, on anapplication, under Rule 97 or Rule 99 of Order 21 CPC, are to bedetermined by the courts dealing with the execution application andnot through a separate suit for this purpose.

The reliance placed by Mr.Manchanda, appearing for therespondents, on the order passed by Additional District Judge,Karnal, allowing the appeal of respondent No.1, which has been up-held by this Court would be confined to the facts of the case inter-sethe respondents. No rights of the petitioner were adjudicated in thesaid proceedings. In fact, Bhagwan Dass, respondent No.1, infairness, was required to disclose the facts of his filing a suit anddecree in favour of the petitioner, which is prior in time to the decreewhich was subject matter of litigation inter-se the respondents wherethis Court had dismissed the revision petition. It would be, thus,

appropriate for the Executing Court to re-consider the objectionpetition filed by the petitioner in the light of above-noted facts. Theimpugned order passed by the Executing Court can not be sustained.The same is hereby set-aside and the case is remanded back to theExecuting Court (Civil Judge (Junior Division), Karnal) to re-considerthe objections filed by the petitioner and decide the same inaccordance with law by following the procedure as prescribed inOrder 21 Rule 101 CPC and other relevant provisions.

The petition is allowed in the above terms.

February 14 ,2008 khurmi

( RANJIT SINGH ) JUDGE