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2013 DIGILAW 577 (HP)

Changez Daniel v. Church of Scotland.

2013-06-20

RAJIV SHARMA

body2013
JUDGMENT Justice Rajiv Sharma, Judge. This petition is directed against the order dated 14.1.2013 passed by the Civil Judge (Senior Division), Chamba, whereby the objections preferred by the judgment debtors in Execution Petition No. 6/2011, have been dismissed. 2.“Key facts” necessary for the adjudication of this petition are that the respondent-decree holder (hereinafter referred to as the “decree holder” for convenience sake) instituted a civil suit No. 83 of 1990. The same was decreed on 30.6.1999. An appeal was preferred against the judgment and decree dated 30.6.1999. Learned District Judge allowed the same and the judgment and decree passed by the trial court was set aside. The decree holder preferred Regular Second Appeal No. 315 of 2000 before this Court. It was allowed on 28.10.2010. The judgment and decree passed by the trial court was upheld. The judgment debtors filed Special Leave Petition (Civil) No. 572/2011 before the Hon’ble Supreme Court. It was dismissed by the Hon’ble Supreme Court on 24.1.2011. 3. The decree holder filed an execution petition bearing No. 6 of 2011 for the execution of the judgment and decree dated 30.6.1999. The judgment debtors filed objections to the same. The decree holder filed reply to the objections filed by the judgment debtors. The objections were dismissed by the Executing Court on 14.1.2013. Hence, the present petition. 4.Mr. Nimish Gupta has vehemently argued that the execution petition filed by Sh. Anand Chandu Lal through Church of Scotland was not maintainable. He also argued that fresh issues were required to be framed by the Executing Court to see whether petition could be filed by Sh. Anand Chandu Lal and Sh. P.K. Samantaroy. In other words his submission is that Sh. Anand Chandu Lal and Sh. P.K. Samantaroy have no authority to file the execution petition. 5.Mr. N.K. Sood, learned Senior Advocate has supported the order dated 14.1.2013. 6.I have heard the learned counsel for the parties and have gone through the pleadings carefully. 7.The judgment and decree was passed by the trial court on 30.6.1999 in civil suit No. 83 of 1990. It has attained finality upto the Hon’ble Supreme court. The Special Leave Petition preferred by the judgment debtors has been dismissed on 24.1.2011. 8. 6.I have heard the learned counsel for the parties and have gone through the pleadings carefully. 7.The judgment and decree was passed by the trial court on 30.6.1999 in civil suit No. 83 of 1990. It has attained finality upto the Hon’ble Supreme court. The Special Leave Petition preferred by the judgment debtors has been dismissed on 24.1.2011. 8. In order to consider the case of the petitioners, it will be apt to refer to the following relevant issues framed by the learned Civil Judge (Senior Division), Chamba in Civil Suit No. 83 of 1990: 1.Whether Anand Chandu Lal is not competent to file the suit on behalf of the Church of Scotland, as alleged? OPD. 2.Whether the suit property in the possession of the defendants as tenant, as alleged? OPD. 3.Whether the plaintiff is entitled to the possession of the suit property? OPD. 4.Whether defendant No.3, namely, Parvez Danial has purchased Khasra No. 2050, as alleged? OPD. 9.Learned trial court has specifically returned a finding that Sh. Anand Chandu Lal being Bishop of Diocese of Amritsar Church of North India being attorney of Church of Scotland was competent to act on behalf of Church of Scotland. He was competent to file the suit on behalf of the Church of Scotland. The judgment and decree passed by the trial court has been upheld upto the Hon’ble Supreme Court. 10. Learned trial court has also returned a finding that Padri Danial Tajdeen was not inducted as a tenant qua the suit property. He was given free accommodation in lieu of services rendered by him to the Church. Learned trial court has also come to the conclusion that since Danial Tajdeen was not tenant of the suit property, but was in occupation as licencee being Padri of the Church, on the death of Padri Danial Tajdeen on 5.9.1987, the licence came to an end as the services of Danial Tajdeen being Padri to the Church also came to an end. The judgment debtors were repeatedly asked to vacate the premises. 11.Learned trial court has also returned a finding that the defendants have failed to prove that the property bearing Khasra No. 2050 was sold by the Church authorities in favour of Parvez Danial. These findings have attained finality upto the Hon’ble Supreme Court. In view of this, no further issues were required to be framed by the Executing Court. 12. 11.Learned trial court has also returned a finding that the defendants have failed to prove that the property bearing Khasra No. 2050 was sold by the Church authorities in favour of Parvez Danial. These findings have attained finality upto the Hon’ble Supreme Court. In view of this, no further issues were required to be framed by the Executing Court. 12. Learned Single Judge of Bombay High Court in Mrs. Monalisa Rohinton Irani versus Naval H. Tata and others, AIR 2001 Bombay 495 has held that it is not necessary that only the decree holder must file the execution petition. It can be filed by any other person who happens to be acquainted with the facts of the case and the Court happens to be satisfied that the person so signing the execution proceedings is acquainted with the facts of the case. Learned Single Judge has held as under: “7. So far as the question as to who should sign the execution proceedings and who should verify the execution proceedings is concerned, the provisions of Order 21, Rule 11(2) of the Code of Civil Procedure, 1908 are most relevant. The relevant provision reads as under : “Written application— (2) Save as otherwise provided by Sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars.”This provision clearly means that it is not necessary that every time only the decree holder must file execution proceedings, It can be filed by any other person who happens to be acquainted with the facts of the case and the Court happens to be satisfied that the person so signing the execution proceedings is acquainted with the facts of the case. Here, the Secretary of the trust has signed the execution proceedings and it is very clear from the order passed by the learned Judge of the Court of Small Causes that he has not raised any doubt about the acquaintance of the Secretary with the facts of the case. So to the satisfaction of the Judge of the Court of Small Causes, the execution proceedings are rightly presented.” 13. So to the satisfaction of the Judge of the Court of Small Causes, the execution proceedings are rightly presented.” 13. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.