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1999 DIGILAW 181 (HP)

JAI SINGH v. GAFOORA

1999-09-01

R.L.KHURANA

body1999
JUDGMENT R. L. Khurana, J.: This revision petition has been directed against the order dated 16.2.1999 of the learned Sub Judge 1st Class (1) Paonta Sahib, in Execution Petition No. 77/10 of 1997, dismissing the objections preferred by the petitioner under Section 47, Code of Civil Procedure, as also the application made by the petitioner under Order 6 rule 17, Code of Civil Procedure, for the amendment of the objection petition preferred under Section 47, Code of Civil Procedure, (for short: the Code). 2. Briefly, the facts of the case leading to the present petition may be thus stated. The respondent Smt. Gafoora was granted a consent decree in Civil Suit No. 184/1 of 1984 on 10.9.1985, against the petitioner for possession of the land measuring 6.16 bighas being 1/2 share in the land measuring 13.12 bighas comprising of Khata/Khatoni No. 65/127-128 and Khasra No. 133 of village Surajpur in Tehsil Paonta Sahib, District Sirmaur, on payment of Rs.13, 300/- by way of pre-emption. Under the terms of the decree, the respondent was required to pay/deposit the pre-emption amount within 45 days of the date of the decree. The entire pre-emption amount was paid/deposit in the stipulated period. The respondent thereafter on 31.5.1997, entitle application for execution of the decree dated 10.9.1985 for being placed into the possession of the land in question. 3. The petitioner preferred objections under Section 47 of the Code of the execution proceedings. Two specific objections were raised, namely, the decree dated 10.9.1985 was not executable since the Punjab Pre-emption Act stood repealed and abolished, and that the execution application was barred by time. 4. While the objections preferred by the petitioner, under Section 47 of the Code, were pending orders, an application was made by him under Order 6 rule 17 of the Code for the amendment of the objection petition. By way of the proposed amendment, the following was sought to be added as preliminary objection No. 3, in the objection Petition. "That the execution petition is not maintainable nor the decree is executable, in view of the agreement (post-executed in the form of affidavit/undertaking by Smt. Gafoora in favour of J.D. Jai Singh. The photo copy is attached." 5. By way of the proposed amendment, the following was sought to be added as preliminary objection No. 3, in the objection Petition. "That the execution petition is not maintainable nor the decree is executable, in view of the agreement (post-executed in the form of affidavit/undertaking by Smt. Gafoora in favour of J.D. Jai Singh. The photo copy is attached." 5. The application was resisted and contested by the respondent, inter alia, on the grounds that the same was not maintainable after the conclusion of the hearing; a new case is being tried to be introduced at a highly belated stage; the application is hit by the provisions contained in Order 26 rule 3-A, in as much as the decree sought to be executed was passed on the basis of consent. On merits, the respondent denied the alleged post-decree agreement. It was pleaded that the alleged agreement could not be looked into since the petitioner had failed to get the satisfaction / adjustment of the decree recorded/certified from the court. 6. The learned Sub Judge vide the impugned order dismissed both the objection petition as well as the application made for amendment of the objection petition. 7. Assailing the impugned order, it has been contended on behalf of the petitioner that the learned court below has committed a grave error in dismissing the objection petition as well as the application for amendment by exercising the jurisdiction in a wrong manner. While considering the application for amendment, the merit of the pleadings sought to be pleaded by way of amendment was not required to be gone into. The proposed amendment was material for determination of real controversy between the parties. 8. The learned counsel for the respondent, on the other hand, has supported the impugned order, on the grounds and for the reasons detailed therein. A perusal of the record of the learned trial under Section 47 of the Code were heard on 4.3.1998 and the case was posted for pronoucement of the orders on 16.3.1998. The application under Order 6 rule 17, of the Code for amendment of the Objection Petition was made on 16.3.1998, after the hearing on Objection Petition had concluded, 9. A perusal of the record of the learned trial under Section 47 of the Code were heard on 4.3.1998 and the case was posted for pronoucement of the orders on 16.3.1998. The application under Order 6 rule 17, of the Code for amendment of the Objection Petition was made on 16.3.1998, after the hearing on Objection Petition had concluded, 9. The is court in Smt. Savitri Devi and others vs. Gauri Dutt and others, R.S.A. No. 244 of 1988, decided on 6.8.1999 following the ratio laid down in Arjun Singh vs. Mohindra Kumar and others (AIR 1964 SC993), Sultan Saleh Bin Omer vs. Vijay Chand Sirimal (AIR 1966 Andhra Pradesh 295), Madan Mohan Aggarwal vs. Smt. Mansa Devi and others (1985 (2) PLR 206), and in Food Corporation of India vs. Krishna Rice and General Mills (1990(2) PLR 383), has held that an application made under Order 6 rule 17 of the Code for amendment of the pleadings is not maintainable after the hearing in the case tands concluded. 10. In the present case, as well, since the application for amendment of the objection petition was made after the conclusion of the hearing, the same was not maintainable and as such has Been rightly dismissed even if the grounds, on which the same has been dismissed, may not be sustainable. 11. Insofar as the dismissal of the Objection Petition is concerned, it has been contended that an error has been committed by the learned Court below inasmuch as no inquiry was held by the learned court by framing issues and thereafter by affording an opportunity to the parties to lead evidence in support of their respective contentions. 12. A learned Single Judge of this Court in Messrs K.N. Trading Co. vs. Masonic Fraternity of Shimla (1996 (1) Sim. L .J. 744) has held that the executing court is within its jurisdiction to proceed to decide the objection petition under Section 47 of the Code, summarily, if no tribal issues therefrom arises, in view of the amendment of section 47 of the Code, with effect from 1.2.1977. 13. It is pertinent to note that only two legal objections, as to limitation and maintainability of the execution petition, were raised in the objection petition. No evidence was required on such objections. The learned executing court, after giving due opportunity to the parties of being heard, decided both the objections against the petitioner. 13. It is pertinent to note that only two legal objections, as to limitation and maintainability of the execution petition, were raised in the objection petition. No evidence was required on such objections. The learned executing court, after giving due opportunity to the parties of being heard, decided both the objections against the petitioner. Therefore, no illegality or impropriety has been committed by the learned executing court. The two legal objections raised by the petitioner in his objection petition, under Section 47 of the Code, have been rightly rejected by the learned executing court. 14. As a result, there being no merit in the present revision petition the same is dismissed. No orders as to costs. 15. The parties through their counsel are directed to appear before the learned court below on 27.9.1999. Records be returned forthwith, so as to reach well before the date fixed. Petition dismissed.