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2014 DIGILAW 133 (PNJ)

Col. Manmohan Singh Bains @ Mohini v. Rachhpal Kaur

2014-01-16

MEHINDER SINGH SULLAR

body2014
Judgment MEHINDER SINGH SULLAR, J. (Oral) The matrix of the facts and material, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant revision petition and emanating from the record, is that, initially, respondents-plaintiffs-decree-holders Smt.Rachhpal Kaur wife of Ajit Singh Bains and Smt.Ravinder Kaur wife of Maninder Singh Bains (for brevity “the DHs”) have instituted the civil suit for a decree of possession and mandatory injunction regarding the suit property, against petitioners defendants judgment debtors Col. Manmohan Singh Bains (retired) @ Mohini son of late Air Vice Marshal Harjinder Singh and his son Vikram Bains (for short “the JDs”). The defendant-JDs contested the suit, filed written statement stoutly denying all the allegations contained in the plaint and prayed for its dismissal. 2. Having completed all the codal formalities and process of production of evidence of the respective parties, the trial Court was stated to have dismissed the suit, by way of judgment and decree dated 10.10.2009. However, the first appellate Court accepted the appeal and decreed the suit of plaintiffs-DHs, by virtue of judgment & decree dated 27.5.2013. 3. Aggrieved thereby, the JDs have filed the regular second appeal, bearing No.2724 of 2013, in which, initially, the operation of the judgment & decree of 1st appellate Court was stayed, subject to furnishing of security, for a sum of Rs.5 crores, in the shape of immovable property by this Court, by means of order dated 25.7.2013 (Annexure P1). The petition for Special Leave to Appeal (Civil) filed by JDs, bearing No.25785 of 2013 was dismissed as withdrawn by Hon'ble Apex Court, through the medium of order dated 26.8.2013 (Annexure P2). 4. Sequelly, CM bearing No.9345C of 2013 filed in RSA No.2724 of 2013 was dismissed by this Court, vide order dated 6.9.2013 (Annexure P3). The review petition filed by the JDs was also dismissed by this Court, by way of order dated 24.9.2013 (Annexure P4). 5. Faced with the situation, the plaintiffs-decree holders filed the execution petition to execute the decree for possession. The executing Court issued the warrant of possession in execution of the decree, by virtue of impugned order dated 19.12.2013 and title correction order dated 24.12.2013 (Annexures P8 (Colly)). In pursuance thereof, the DHs have already taken the actual possession of the property in litigation, in execution of the indicated decree. 6. The executing Court issued the warrant of possession in execution of the decree, by virtue of impugned order dated 19.12.2013 and title correction order dated 24.12.2013 (Annexures P8 (Colly)). In pursuance thereof, the DHs have already taken the actual possession of the property in litigation, in execution of the indicated decree. 6. Now the petitioners-JDs have preferred the instant revision petition to challenge the impugned orders (Annexures P8 Colly), invoking the provisions of Article 227 of the Constitution of India. 7. Having heard the learned counsel for the petitioners-JDs, having gone through the record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the present revision petition in this context. 8. Ex facie, the arguments of learned counsel that executing Court has issued the impugned warrant of possession, without actual service of petitioner-JDs and since the entire proceedings of taking possession were illegal, so, they are entitled to restitution of possession of the property in question, are neither tenable nor the observations of Patna High Court in case Karshan Bhaban Chatalia v. Indra Narayan Chandra AIR 1923 Patna 597 are at all applicable to the facts of the instant case, wherein, the disputed property was a piece of land about 10 Kathas. The JD therein claimed that his collie shed and tram lines for the purpose of working is colliery were there. However, it was stoutly denied by the DH therein. Therefore, on the peculiar facts and in the special circumstances of that case, it was observed that the balance of convenience lay in staying the execution of the decree during the pendency of the disposal of the appeal, subject to the JD furnishing sufficient security for the restitution of the same to the DH in the event of appeal being dismissed. Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of petitioners-JDs in the present controversy. 9. As is evident from the record that the suit for possession filed by the decree-holders was decreed by the first appellate Court, by means of judgment & decree dated 27.5.2013. Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of petitioners-JDs in the present controversy. 9. As is evident from the record that the suit for possession filed by the decree-holders was decreed by the first appellate Court, by means of judgment & decree dated 27.5.2013. In the wake of RSA, bearing No.2724 of 2013 filed by the petitioners-JDs, the operation of the decree was stayed, subject to furnishing of security for a sum of Rs.5 crores, vide order dated 25.7.2013 (Annexure P1) by this Court. The JDs neither handed over possession of the property in litigation to the DHs nor furnished the indicated security. Consequently, a Coordinate Bench of this Court (Rakesh Kumar Garg, J.) has vacated the stay order, by way of order dated 6.9.2013 (Annexure P3), which, in substance, is as under: “Admittedly, the appellants have failed to furnish the security as ordered on 25.7.2013.. It is made clear that the interim order was issued subject to furnishing of the security. Since the security has not been furnished, the interim order has come to an end and deemed to have not come into existence.” 10. Thereafter, the DHs have already duly taken the possession of the house in dispute in execution of the decree in the manner depicted hereinabove. Therefore, once the conditional stay order was vacated by this Court on account of non-furnishing of security by the JDs and there was no stay from any Court after 6.9.2013, in that eventuality, the DHs were well within their legal right to execute the decree and it was obligatory on the part of executing Court to issue warrant of possession in pursuance thereof. Hence, the question of restitution of suit property did not arise at all, as contrary urged on behalf of the petitioners-JDs. Thus, the contrary contentions of their counsel “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 11. Not only that, the executing Court has correctly issued the warrant of possession, through the medium of impugned order dated 19.12.2013 (Annexure P8 (Colly)), which, in substance, is as under: “Heard. The certified copies of both orders passed by Hon'ble High Court perused. No further stay order has been received against the judgment passed by appellate court till date. 11. Not only that, the executing Court has correctly issued the warrant of possession, through the medium of impugned order dated 19.12.2013 (Annexure P8 (Colly)), which, in substance, is as under: “Heard. The certified copies of both orders passed by Hon'ble High Court perused. No further stay order has been received against the judgment passed by appellate court till date. Since the execution has been filed within 2 years from the date of judgment/orders, let warrant of possession be issued in favour of D.H. for 08.01.2014. Warrant of attachment of property of JDs be also issued for date fixed on furnishing list of property of JD. It is made clear that this order is subject to condition in case the JD shows any stay order against the order/decree then the warrant of possession shall not be executed. It is further order that the bailiff is allowed to break open the lock of demised premises if found lock and also to take police help for execution of warrant of actual and copy of this order be sent to SHO concerned for necessary compliance.” 12. Meaning thereby, the executing Court has examined the matter in the right perspective and has recorded the cogent grounds in this behalf. Such orders, containing valid reasons, cannot legally be set aside, in exercise of limited revisional jurisdiction of this Court, as envisaged under Article 227 of the Constitution of India, unless & until, the same are perverse and without jurisdiction. Since, no such patent illegality or legal infirmity has been pointed out by the learned counsel for petitioner-JDs, so, the impugned orders (Annexures P8 Colly) deserve to be and are hereby maintained in the obtaining circumstances of the case. 13. No other point, worth consideration, has either been urged or pressed by the learned counsel for the petitioner-JDs. 14. In the light of aforesaid reasons, as there is no merit, therefore, the instant revision petition filed by the petitioner-JDs is hereby dismissed as such.