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2005 DIGILAW 388 (HP)

HARI DASS v. AMAR PAL

2005-10-21

V.M.JAIN

body2005
JUDGMENT V,M. Jain, J.—This revision petition has been filed by the petitioner-judgment debtor against the order dated 17.6.2005 passed by the learned executing Court (Civil Judge Senior Division), Rajgarh camp at Sarhan, dismissing the objections filed by the judgment debtor during the pendency of the execution petition and directing the issuance of warrant of possession as per the Civil Court decree. 2. The facts which are relevant for the decision of the present petition are that the Civil Court decree which was finally passed was a decree for possession qua Khasra No. 1695/1235, measuring 3 biswas after demolition of structure. For the execution of the said decree, the decree holder filed the execution petition before the executing Court. During the pendency of the said execution petition, the judgment debtor filed objection petition to the effect that under the garb of the Civil Court decree, the decree holder was bent upon to demolish the house of the judgment debtor, which was situated in Khasra No. 1696/ 1235. It was alleged that at the time of demarcation, the judgment debtor was put into possession of separate parcel of land and by executing the Civil Court decree the decree holder would be enjoying the benefit of two different parcels of land. It was alleged that the real controversy between the parties could be decided by way of demarcation at the spot by some competent revenue officer to identify the land at the spot. The decree holder filed reply to the said objections taking up the preliminary objection that the Civil Court decree had already become final between the parties. It was further alleged that the civil Court decree could be effectively executed at the spot and that the suit land was well demarcated by the Tehsildar on 30.5.2002 as per the demarcation report, copy of which was attached. It was accordingly prayed that the objection petition may be dismissed. 3. After hearing both sides and perusing the record, the learned executing Court dismissed the objection petition holding that the executing Court could not go behind the decree. Resultantly warrant of possession was ordered to be issued as per the Civil Court decree. Aggrieved against the same, the judgment debtor filed the present revision petition in this Court. 4. Notice was ordered to be issued to the respondents decree holders and further proceedings in the objection petition were stayed. 5. Resultantly warrant of possession was ordered to be issued as per the Civil Court decree. Aggrieved against the same, the judgment debtor filed the present revision petition in this Court. 4. Notice was ordered to be issued to the respondents decree holders and further proceedings in the objection petition were stayed. 5. I have heard the learned Counsel for the parties and have gone through the record carefully. 6. The learned Counsel appearing for the petitioner judgment debtor submitted before me that the learned executing Court had erred in law in dismissing the objection petition without framing issues and without recording evidence. Reliance has been placed on the law laid down by this Court in the case Sohan Lal v. Sadhu Ram, 2003 Latest Himachal Law Judgment 154. On the other hand, learned Counsel appearing for the decree holders-respondents submitted before that the executing Court had rightly dismissed the objection petition and that no case for framing of issue and recording of evidence was made out. After hearing learned Counsel and perusing the records, in my opinion, there is no merit in this revision petition and the same is liable to be dismissed. In Sohan Lals case (supra) it was held by this Court as under : "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. 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. 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” 7. From a perusal of the above, it would be clear that in the reported case the plea taken by the judgment debtor was that the decree was not executable in view of the agreement arrived at between the parties as per the affidavit sworn by the decree holder and under those circumstances it was found by this Court that this question of fact could be determined only after framing of issues and allowing the parties to lead evidence and this could not be determined in a cursory manner. It would also be clear that in the reported case it was held by this Court 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 is competent to dismiss the same without holding any inquiry but at the same time if the objections prima facie show that the decree is not executable for some legal and valid reasons, the executing Court is required to frame issues and thereafter record evidence. In M/s. K.N. Trading Company v. Masonic Fraternity of Shimla, ILR 1996 (II) HP 1713, it was held by this Court that the executing Court is within its jurisdiction to proceed to decide the application under Section 47 CPC i.e. objections, summarily, if no triable issue arises from the pleadings. In M/s. K.N. Trading Company v. Masonic Fraternity of Shimla, ILR 1996 (II) HP 1713, it was held by this Court that the executing Court is within its jurisdiction to proceed to decide the application under Section 47 CPC i.e. objections, summarily, if no triable issue arises from the pleadings. Reliance was placed on the law laid down by the Punjab & Haryana High Court in the cases Kulraj Singh Paul v. Smt. Ranjit Kaur and another, AIR 1983 Punjab and Haryana 299 and Harnek Singh v. Padam Kaur, 1989 Civil Court Cases 161 (P&H). 8. In view of the law laid down in the aforementioned authorities, in my opinion, it would be clear that the executing Court is competent to dismiss the objection petition summarily, without holding any inquiry and without framing of issues and without recording of evidence, if no triable issue arises from the pleadings and in case it is found that the objection petition has been filed to delay the execution and would result in the abuse of the process of the Court. In the present case, as referred to above, the Civil Court decree was passed in respect of land measuring 3 biswas comprised in Khasra No. 1695/1235 and a decree for possession was passed in favour of the decree holder qua the said land after demolition of the structure thereon. Under these circumstances, in my opinion, there would be no question of framing an issue and/or holding an inquiry and/or allowing the parties to produce evidence in support of their case, since the Civil Court decree was clear and categorical that the same was in respect of Khasra No. 1695/ 1235. Furthermore, there would be no question of appointing some competent revenue official to identify the suit land at the spot, since the warrant of possession is required to be issued only in respect of the land qua which the decree had been passed i.e. land measuring 3 biswas comprised in Khasra No. 1695/1235. It would be the duty of the official deputed to deliver the possession to the decree holder at the spot to comply with the decree in letter and spirit by delivering the possession of the property qua which the Civil Court decree had been passed in favour of the decree holders and against the judgment debtor. It would be the duty of the official deputed to deliver the possession to the decree holder at the spot to comply with the decree in letter and spirit by delivering the possession of the property qua which the Civil Court decree had been passed in favour of the decree holders and against the judgment debtor. Under these circumstances, in my opinion, there would be no question of appointing a revenue official to visit the spot to identify the land at the spot, especially when the Court had passed the decree in respect of Khasra No. 1695/1235. I am further of the opinion that the learned trial Court had rightly dismissed the execution petition and had rightly ordered the issuance of warrants of possession and no fault could be found with the same. 9. In view of the above, finding no merit in this petition, the same is hereby dismissed. CMP No. 100 of 2005 In view of dismissal of the main petition, the interim order dated 14.7.2005 shall stand vacated and the application is disposed of accordingly. Petition dismissed. -