Research › Search › Judgment

Himachal Pradesh High Court · body

2011 DIGILAW 284 (HP)

Jalam Singh v. Atma Ram

2011-01-06

RAJIV SHARMA

body2011
JUDGMENT Rajiv Sharma, Judge. This Revision Petition has been directed against the order dated 28.3.2003 passed by the learned Sub Judge 1st Class, Court No.1, Paonta Sahib, District Sirmaur in execution petition No. 64/10 of 1997. 2. Material facts necessary for the adjudication of this petition are that petitioner-decree holder (hereinafter referred to as 'decree-holder' for convenience sake) instituted a civil suit No. 8/1 of 1993 against the respondents-judgment-debtors (hereinafter referred to as ‘judgment debtors’ for convenience sake). The suit was decreed by the trial court on 24.8.1996 and judgment debtors were restrained from interfering over the suit land comprised in Khata No. 188 min, Khatauni No. 817 min, Khasra No.1094 measuring 15 biswas, Khasra No. 3296/1121 measuring 2-14 bighas and the land comprised in Khata No. 190 min, Khatauni No. 820 min, Khasra No 3208/1178 measuring 1 bigha and the land comprised in Khata No. 192 min, Khatauni No. 830, Khasra No.1092 measuring 2-8 bighas and Khasra No.1009 min measuring 4-5 bighas situated in mauza Sherli Manpur, Sub Tehsil Kamrao, Tehsil Paonta Sahib, District Sirmaur. Judgmen-debtors preferred an appeal before the learned District Judge. The same was decided by the learned District Judge on 26.11.1997. The execution petition was filed on 14.5.1997. According to the decree-holder, on 15.4.1997, judgment debtors removed the wheat crop from the suit property. The learned trial court dismissed the execution petition, being not maintainable on 28.3.2003. According to him, the decree could only be executed by the first appellate court. 3. Mr. Hoshiar Kaushal has strenuously argued that the decree in question dated 24.8.1996 could only be executed by the trial court. According to him, the first appellate Court has erred in law by coming to a conclusion that the decree could be executed only by the first appellate court. 4. Mr. Anil Chauhan has supported the impugned order passed by the learned Sub Judge 1st Class, Court No.1, Paonta Sahib. 5. I have heard the learned counsel for the parties and have perused the record carefully. 6. The decree was passed by the learned Sub Judge 1st Class on 24.8.1996. The judgment debtors were restrained for interfering in the possession of khasra numbers, as detailed hereinabove. The appeal preferred by the judgment debtors was dismissed by the learned District Judge on 26.11.1997. 6. The decree was passed by the learned Sub Judge 1st Class on 24.8.1996. The judgment debtors were restrained for interfering in the possession of khasra numbers, as detailed hereinabove. The appeal preferred by the judgment debtors was dismissed by the learned District Judge on 26.11.1997. Section 37 of the Code of Civil Procedure, 1908, lays down that the expression “Court which passed a decree”, or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or contest, be deemed to include- (a)where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and (b)where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit. 7. It will also be pertinent to take note of section 38. As per section 38, a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. 8. Learned Single Judge of Patna High Court in , AIR 1975 Patna 307 has held that section 38 provides that the decree may be executed either by the "court which passed" it or by the court to which it is sent for execution. The term, 'the court which passed a decree' thus in the case of an appellate decree would include the court of first instance for the purpose of execution. It was, therefore, immaterial that the decree in the present case was that of the appellate court in respect of which the application for execution for costs and restitution by delivery of possession had been filed. 9. Their Lordships of the Hon’ble Supreme Court in, (1996) 11 SCC 446 have held that it is also axiomatic that once the partition decree becomes final, the court which passed the decree does not become functus officio for all purposes. On the contrary, its role remains effective till the decree passed by it gets fully executed and implemented. 9. Their Lordships of the Hon’ble Supreme Court in, (1996) 11 SCC 446 have held that it is also axiomatic that once the partition decree becomes final, the court which passed the decree does not become functus officio for all purposes. On the contrary, its role remains effective till the decree passed by it gets fully executed and implemented. It is for that purpose that the legislature has provided as per section 38 of the Code of Civil Procedure Code that a decree may be executed by the court which passed it, or by the court to which it is sent for execution. Therefore, it was the duty of the court which passed the decree to get it executed when called upon to do so with a view to seeing that the rights and obligations flowing from such decree get finally complied with and translated into reality. Their Lordships have further held that till that stage is reached the court which passed the decree does not become totally functus officio and the litigation between parties cannot be said to be ended finally. Their Lordships have held as under: It is also axiomatic that once the partition decree becomes final, the Court which passed the decree does not become functus officio for all purposes. On the contrary, its role remains effective till the decree passed by it gets fully executed and implemented. It is for this very purpose that the legislature has provided as per Section 38 of the Civil Procedure Code that a decree may be executed by the Court which passed it or by the Court to which it is sent for execution. Therefore, it is the duty of the Court which passes the decree to get it executed when called upon to do so with a view to seeing that the rights and obligations flowing from such decree get finally complied with and translated into reality. Till that stage is reached the Court which passes the decree does not become totally functus officio and the litigation between parties cannot be said to have ended finally. 10. The learned Sub Judge has failed to take into consideration sections 37 and 38 of the Code of Civil Procedure while deciding the execution petition No. 64/10 of 1997. He had come to a wrong conclusion that the decree was required to be executed by the appellate court. 10. The learned Sub Judge has failed to take into consideration sections 37 and 38 of the Code of Civil Procedure while deciding the execution petition No. 64/10 of 1997. He had come to a wrong conclusion that the decree was required to be executed by the appellate court. The decree was required to be executed by the trial court on the basis of the judgment dated 24.8.1996, which was affirmed by the first appellate court on 26.11.1997. 11. Accordingly, the petition is allowed. Order dated 28.3.2003 is quashed and set aside. Execution Petition No.64/1997 is directed to be restored to its original number and learned Sub Judge 1st Class, Court No.1, Paonta Sahib, District Sirmaur is directed to decide the same, within a period of three months from today. In order to avoid delay, the parties are directed to make themselves available before the learned Sub Judge on 15.1.2011. No costs.