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2008 DIGILAW 1468 (PNJ)

Jagjit Singh v. Surinder Singh

2008-08-26

VINOD K.SHARMA

body2008
JUDGMENT Vinod K. Sharma, J. (Oral) - This revision petition is directed against the order dated 18.12.2007 passed by the learned Executing Court vide which application moved by the petitioners under Sections 151, 152 CPC and objections under Section 47 CPC, have been ordered to be dismissed. 2. The Judgment Debtor claimed that the decree-holder filed a suit for possession of the property on the basis of a sale certificate issued by JD No. 2 in an auction and the said property i.e. the Plot No. B-II-18 bounded as East : B-11-19, West : Gali, North : B-II-20 and South : Gali as detailed and described in the sale certificate dated 29.4,1960. The Civil suit filed by decree holder was decreed on the basis of judgment and decree dated 9.8.1985 passed by the learned Addl. Senior Sub Judge, Gurdaspur and the appeal preferred against the said order was also dismissed by the learned Addl. District Judge, Gurdaspur on 6.11.1986. 3. It is the case of the petitioner that decree holder filed an execution concealing the material facts from the Court and distorted the exact location of boundaries of the suit property and thus committed fraud at the time of execution. It is the case of the petitioner that the property given in the sale certificate is non-existence. It was further the case of the petitioner that the decree holder-filed a suit for mandatory injunction for correction of the boundaries and said suit was withdrawn by the decree holder. It was further case of the petitioner that an application was also moved with the Chief Settlement Commissioner, Gurdaspur seeking a certificate specifying the correct boundaries and also give dimensions of the property purchased i.e. B-1I-18. The said application was also withdrawn. It was further the case of the petitioners that with the connivance of Bailiff and with the help of local police authorities and in the garb of Warrants of possession he has taken wrong delivery of possession of the property, which was not covered under the property in execution. It was claimed that JDs have been illegally dispossessed and, therefore, they were liable to put back in possession by correction of error. 4. The application was contested and on the pleadings of the parties, following issues were framed : "1. It was claimed that JDs have been illegally dispossessed and, therefore, they were liable to put back in possession by correction of error. 4. The application was contested and on the pleadings of the parties, following issues were framed : "1. Whether Decree holders have been delivered the possession of the land in accordance with the subject matter of the decree ? OPA 2. Relief." 5. Issue No. 1 was decided in favour of the respondent-decree holder by observings as under : "...................counsel for the decree holder has made contention that earlier applicants have already filed the objection under section 47 of CPC on 5.5.1990 against the decree holder of similar nature in the Court of Shri D. R. Arora, the then Addl. Senior Sub Judge, Gurdaspur which ware dismissed vide Ex. R-1/E on 26.8.1995. The J.Ds/applicants have also filed objections of similar nature before the Court of Sh. N.K. Goel, the then Civil Judge (Jr. Divn.), Gurdaspur and same were dismissed vide order dated 17.8.1996 Ex. R- 1/F. The mother of the applicant No. 1 namely Sukhjit Kaur also filed Civil suit in the Court of Shri J.S. Chauhan, the then Civil judge (Jr. Divn.), Batala along with an application for execution of decree against the present applicants which was dismissed at Batala on 3.1.1996 vide Ex. R-1/G and she further went in appeal against the said order which was dismissed as withdrawn by her vide order dated 19.10.1998 vide Ex. R-1/H. The civil suit titled Sukhjit Kaur v. Swaran Singh had also been dismissed vide order dated 13. 12.2000 by the Court of Shri Sanjiv Joshi, the then Civil Judge (Junior Division), Batala vide Ex. R-1/1 and the possession of plot bearing No. B-II-18 has already been delivered to the respondents in an execution application." 6. Mr. Puneet Jindal, learned counsel appearing on behalf of the petitioners contended that the learned executing Court on appreciation of evidence came to the conclusion that though decree was passed for different Property, the possession given is of different property. 7. The contention of the learned counsel for the petitioners was that possession to the decree holder has not been granted as per the decree, as per the report of the Local Commissioner placed on record. 8. 7. The contention of the learned counsel for the petitioners was that possession to the decree holder has not been granted as per the decree, as per the report of the Local Commissioner placed on record. 8. The learned counsel for the petitioners contended that the judgment debtor had earlier filed Civil Revision No. 6007 of 2003, which was decided on 17.4.2006 by holding that the question whether the actual property has been delivered or not, is the domain of the executing Court and it is for the executing Court to go into this aspect. The Court observed that the decree holder was proceeded against ex parte and, therefore, it would he unjust to him not to permit him to show before the executing Court that in fact possession of the property, which has been delivered is in terms of the sale certificate. Thus, the contention of the learned counsel for the petitioners was that in view of the order passed by this Court, it was incumbent upon the Court to have adjudicated this matter and as in the present case it was proved by evidence led by the petitioners, and the report of the Local Commissioner that the property, the possession of which was handed over to the decree holder, was in fact different from one qua which the decree was passed. 9. The learned counsel for the petitioners by placing reliance on the judgment of the Honble Supreme Court in the case of Balwant Singh and others v. Gurbachan Singh and others, AIR 1993 Supreme Court 136 contended that where the land in excess beyond the terms of decree is given to the decree holder in execution proceedings the same can be corrected by the executing Court on objection petition filed under Section 47 of the Code of Civil Procedure read with Section 151 CPC. 10. The learned counsel for the petitioners thereafter by placing reliance on the judgment of the Honble Supreme Court in the case of M.P. Shreevastava v. Mrs. Veena, AIR 1967 Supreme Court 1193 (V 54 C 248) contended that executing Court can only execute a decree which in law is enforceable and it is duty of the executing Court to decide the question relating to the execution, discharge or satisfaction of a decree and the question arising between the parties to the suit in which the decree is passed. The plea, thus, raised is that in the present case the executing Court failed to adjudicate the questions raised by the petitioners. 11. Finally, reliance was placed by the learned counsel for the petitioners on the judgment of the Honble Kerala High Court in the case of Gopalkrishna Kammath v. R. Bhaskar Rao, AIR 1989 Kerala 251 to contend that when the property not covered by the decree is delivered to decree-holder in execution of the decree, the proper remedy of the judgment debtor is to recover property delivered by moving application under Section 47 C.P.C. and not by separate suit. 12. The contention of the learned counsel for the petitioner, therefore, was that as it is not possible for the petitioners to file a separate suit it was for the executing Court to have decided the questions. 13. However, on consideration of the matter, I find no force in the contention raised by the learned counsel for the petitioner. It may be noticed that by way of impugned order the Court has adjudicated the question as to whether the property has been rightly handed over to the decree holder. It may be noticed that the learned executing Court has dismissed the application moved by the petitioner in view of the fact that similar objections raised by the petitioners stood already dismissed by the learned Senior Sub Judge, Gurdaspur vide order dated 26.8.1995 14. The learned counsel for the petitioners contends that those objections were different, however, reading of Ex. R/E placed on file shows that the objections were the same as raised in the present case. The finding recorded in the previous litigation between the parties under Section 47 CPC reads as under : "However, under the detailed discussion made on issue No. 1, the then Ld. Addl. Senior Sub Judge came to the conclusion that properly No. B-II-18 was put to auction and Swaran Singh (DH) was the highest bidder of the property and thus Swaran Singh was declared the owner of the property No. B-II-18. In the grounds of appeal No. 165 of 1985 tilled as Jagjit Singh & others v. Swaran Singh and others again the plea was raised that actually the properly No. B-II-19 was put to auction but the appeal was dismissed as would appear from the copy of the decree dated 6.11.1985 produced on file. In the grounds of appeal No. 165 of 1985 tilled as Jagjit Singh & others v. Swaran Singh and others again the plea was raised that actually the properly No. B-II-19 was put to auction but the appeal was dismissed as would appear from the copy of the decree dated 6.11.1985 produced on file. The issue regarding the identity of the property involved in the decree, under execution, already having been settled by the courts, the objectors/JDs are estopped to agitate the same in the proceedings of the execution. The objectors/JDs have not produced on file any corrigendum or the sale certificate to have been issued by the Rehabilitation Deptt. in respect of property No. B-II-18 and they simply produced the photostat copy of the jamabandi for the year 1985-86 regarding the land bearing khasra No. 36/46 (1-12) owned and possessed by the Central Govt. and in which there is reference of mutation No. 1764 regarding the same having been sold in favour of the JDs Jagjit Singh, Gursewak singh Gursharan Singh as also Gurparkash Singh being the sons and Smt. Sukhjit Kaur widow of Labh Singh. In the absence of the corrigendum us also the sale certificate, or the conveyance deed to have been issued in favour of the objectors/JDs the said land comprised of No. 36/36 cannot be converted with the property B-II-18 and therefore, it would appear that the objectors/JDs have got no concern with the property No. B-II-18. The right of the D.H. Has not been affected simply because he brought the Civil Suit No. 175 of 2.6.87 against the Stale of Punjab and Tehsildar (Sales) for a mandatory injunction so as to correct the boundaries of the property No. B-II-18, which were wrongly given in the sale certificate dated 29.4.60 issued by the Tehsildar (Sales) because the D.H. ultimately withdrew the suit No. 4.8.93 as a decree for possession of the land involved in the suit has already been pasied in his favour, as would apear from the coy of the order dated 4.8.93 passed in the said suit. The fact of the matter is that the decree holder was issued the sale certificate in respect of the property No. B-II-18 and regarding which the objectors/JDs have not been able to show his right, title or interest. Thus the objections have been passed forth without any basis. The fact of the matter is that the decree holder was issued the sale certificate in respect of the property No. B-II-18 and regarding which the objectors/JDs have not been able to show his right, title or interest. Thus the objections have been passed forth without any basis. The D.H. having realized his folly in having brought the suit for mandatory injunction withdrew the same because property No. B-II-19 along with the site plan giving the full discretion qua the boundary of the same, as would appear from the copy of the site plan produced on the file and therefore, it was not for the plaintiff to get any correction in the boundaries of the property given in the sale certificate particularly when it was not the case of the State in civil suit No. 67 of 1982 titled as Swaran Singh v. Jagjit Singh & others including the Punjab State that the property No. B-II-18 with the boundaries as given in the site plan had not been auctioned in favour of the DH (plaintiff). In this way, I do not find any substance in the objections and the same are hereby dismissed being false and frivolous." 15. Thus it would be noticed that the objection petition now filed was even barred on the principle of res judicata as it was not open to the petitioners to have raised the same objections again, once the said objections were rejected. The contention of the learned counsel for the petitioners that as per the report of the Local Commissioner fresh cause of action had accrued to the petitioners, also cannot be accepted. 16. There is no illegality in the impugned order which may call for interference by this Court in exercise of supervisory reversional jurisdiction. Dismissed.