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2000 DIGILAW 777 (PNJ)

Raghbir Chand Batta v. Sona @ Gujjari And Ors.

2000-07-21

M.L.SINGHAL

body2000
Judgment M.L.Singhal, J. 1. On the statement made by Mr. M.L. Gupta, Advocate in appeal before the Shri M.S. Luna, Additional District Judge, Patiala on 21.10.1978 the appeal of Raghbir Chand Batta plaintiff (petitioner herein) was allowed and his suit was decreed for permanent (mandatory) injunction against Smt. Sona alias Gujri. Ram Kumar Santosh Kumar alias Sudesh Kumar Gajju Ram and Chhajju Ram directing them to remove the encroachment measuring 5 - 9" made by them on the wall belonging to the plaintiff on the first floor by dismantling the Kacha portion of the wall and erecting a pacca wall in its place on their side as shown in the site plan as AB and restoring the portion of the wall in its original position and to remove the girder place on the wall of the plaintiff. 2. Raghbir Chand Batta took out execution. In execution Gajju Ram defendant-judgment-debtor put in objections under Sections 47/151 Code of Civil Procedure saying that the decree was not executable as he and his brother Chhaju Ram, who were respondents in the appeal were not represented by any counsel. Mr. M.L. Gupta was not their counsel nor they executed any vakalatnama in his favour. Appeal was accepted on the basis of the statement made by Mr. M.L. Gupta Advocate, who was not representing them (Gajju Ram and Chhaju Ram). Appeal should have been decided on merit so far as they are concerned. These objections weighed with the executing Court. He, accordingly, dismissed the execution application vide order dated 31.3.1980. 3. Feeling aggrieved Raghbir Chand Batta has come up in revision to this Court. 4. Mr. ML Gupta Advocate made statement in the Appellate Court presided over by Mr. M.S. Luna, Additional District Judge, Patiala on 21.10.78, which reads as follows : "Stated that after inspecting the disputed property his clients are satisfied. Appeal be accepted and judgment of the lower court be reversed." 5. Mr. ML Gupta was counsel for Smt. Sona and Suresh Kumar. He signed on behalf of Smt. Sona and Sudesh Kumar, Ram Kumar respondent also signed in Hindi underneath the statement of Mr. M.L. Gupta Advocate. In other words, he also accepted the statement of Mr. M.L. Gupta Advocate and wanted the appeal to be decided in terms of his statement. Chhaju Ram was proceeded ex parte in appeal. Gajju Ram was not represented by Mr. M.L. Gupta Advocate. M.L. Gupta Advocate. In other words, he also accepted the statement of Mr. M.L. Gupta Advocate and wanted the appeal to be decided in terms of his statement. Chhaju Ram was proceeded ex parte in appeal. Gajju Ram was not represented by Mr. M.L. Gupta Advocate. He shall also be taken to have been exparte because he was present before the appellate court on 30.10.76. It thus emerges that appeal should have been decided on merit so far as Chhaju Ram and Gajju Ram respondents are concerned and it was correctly found by the Executing Court that so far as Gajju Ram and Chhaju Ram are concerned, qua them the appeal could be decided only on merit and the agreement/compromise made on 21.10.78 by Smt. Sona etc. as not binding on Chhaju Ram and Gajju Ram as they were not party to the said agreement/compromise. Executing Court thus justifiably allowed the objection of Gajju Ram and dismissed the execution application. Effect of the order passed by Executing Court would thus be that qua Gajju Ram and Chajju Ram appeal should be decided on merit. Learned District Judge, Patiala is, therefore, directed to arrange the hearing denovo of Civil Appeal No. 121 of 6.8.75 on merit so far as Chhaju Ram and Gajju Ram respondents are concerned. So far as the other respondents are concerned, they shall be bound by the judgment of Mr. M.S. Luna. Additional District Judge, Patiala passed on the basis of the statement made by Mr. M.L. Gupta Advocate, (who represented Smt. Sona, Sudesh Kumar) and also Ram Kumar, who impliedly accepted that statement by putting his signatures under neath that statement. Learned District Judge, Patiala may decide the appeal himself or may assign it for disposal on merit to some Additional District Judge, Patiala. 6. Revision disposed of.