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2002 DIGILAW 200 (HP)

Sohan Lal v. Sadhu Ram

2002-07-12

KAMLESH SHARMA

body2002
JUDGMENT : Kamlesh Sharma, J. The petitioner is the judgment Debtor whereas respondent is the Decree Holder and they will be referred to as such in this judgment. The judgment Debtor is aggrieved by the order dated 12.11.2001 passed by the Sub Judge (2), Rohru, District Shimla whereby his objections to the execution of decree dated 31.12.1993 passed in civil suit No. 103/1 of 1991 were dismissed. 2. This court has heard learned Counsel for the parties and gone through the record. 3. It is not dispute that in civil suit No. 103/1 of 1991 the decree was passed in favour of the Decree Holder for possession of land bearing khasra Nos. 1199, 1201, 1202, 1203, 1205 and 1213, kitas 5, measuring 0-22-30 hects. Situate at Chak Sheel, Tehsil Rohru District Shimla (hereinafter called the suit land) and the Decree Holder has filed the Execution petition No. 16-10 of 2001 on 27.7.2001 to execute the said decree. Judgment Debtor' resisted the execution petition by filing objections under section 47 of the code of civil procedure. 4. The precise objections of judgment Debtor are that since he was in possession of the land in dispute and had raised orchard and constructed his house thereon, the Decree Holder even after obtaining the decree in his favour entered into agreement with him to sell the suit land for a consideration of Rs. 9,000/-, out of which an amount of Rs. 500/- was paid in advance and another amount of Rs.5,000/- was paid on his demand at a later date and the balance amount was to be paid at the time of execution of the sale deed. The agreement arrived at between the parties was reflected in 'the affidavit sworn in by the Decree Holder, a copy whereof was filed along with the objections. As per the judgment Debtor, in view of the agreement arrived at between the parties he had not filed appeal against the decree under execution. But instead of executing the sale deed of the suit land and getting it registered the Decree Holder has filed the Execution petition to execute the decree. 5. As per the judgment Debtor, in view of the agreement arrived at between the parties he had not filed appeal against the decree under execution. But instead of executing the sale deed of the suit land and getting it registered the Decree Holder has filed the Execution petition to execute the decree. 5. In reply to the objections the Decree Holder has denied that any agreement was arrived at between him and the judgment Debtor and has stated that his thumb impression might have been taken fraudulently by the judgment Debtor on the affidavit which is a result of fraud and misrepresentation. It is also stated in the reply that judgment Debtor maybe put to strict proof of the alleged agreement. 6. The sub judge has dismissed the objection on the basis of reply filed by the Decree Holder without holding any inquiry into the matter. 7. As per section 47 of the Code of Civil Procedure all questions arising between the parties in the suit in which the decree was passed and relating to the execution discharge or satisfaction of the decree are to be determined by the Executing Court and not by a separate suit. The Executing Court must decide the question of fact raised by way of objections relating to execution of the decree, by framing necessary issues and by allowing the parties to lead evidence, though it all depends upon the nature and tenor of the objections raised by the judgment Debtor. So far case in hand is concerned, the question of fact raised by judgment Debtor was that the decree is not executable in view of the agreement arrived at between the parties, as depicted in the affidavit sworn in by the Decree Holder, which can be determined after framing the issues and allowing the parties to lead evidence . It cannot be determined in the cursory manner, as it has been done by the Executing Court. 8. Learned Counsel for the Decree Holder has supported the impugned order and has relied upon the judgment of Punjab and Haryana High Court in Rocky Tyres, Chandigarh and others v. Ajit Jain and Another, AIR 1998 Punjab and Haryana, 202 and this Court in M/S K.N. Trading Company v. Masonic Fraternity of Shimla, ILR 1995 (11) HP 1713. 8. Learned Counsel for the Decree Holder has supported the impugned order and has relied upon the judgment of Punjab and Haryana High Court in Rocky Tyres, Chandigarh and others v. Ajit Jain and Another, AIR 1998 Punjab and Haryana, 202 and this Court in M/S K.N. Trading Company v. Masonic Fraternity of Shimla, ILR 1995 (11) HP 1713. There is no quarrel to the proposition laid down in both these judgments that if the objections are prima facie frivolous, vexatious, intended to delay the execution, vague and would amount to abuse of process of the Court, the Executing Court may dismiss them without holding any inquiry, but if by way of objections prima facie it is shown that the decree is not executable for some legal and valid reasons the Executing Court is required to frame issues and record evidence and thereafter decide the objections. 9. Therefore, the present revision petition is allowed and the impugned order dated 12..11.2001 passed by the Sub Judge is set aside with direction to the Sub Judge to decide the objections afresh in accordance with law after framing issues and allowing the parties to adduce evidence. In view of the fat that decree under execution is of the year 1993 the Executing Court is directed to complete the inquiry and decide the objections on or before 31.12.2002. The parties are directed to appear before the Executing Court on 5.8.2002, when issues will be framed. No order as to costs.