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2014 DIGILAW 1356 (PNJ)

Gajender Singh v. Jai Chand

2014-09-29

BHARAT BHUSHAN PARSOON

body2014
JUDGMENT Dr. Bharat Bhushan Parsoon, J.:- Dismissal of the objection petition of the objector/judgment debtor by the Executing Court i.e. of Additional Civil Judge(Senior Division), Loharu vide order dated 5.9.2013 (Annexure P4) forms genesis of this revision petition. It is claimed that since the judgment debtor is also a co-owner in the land in litigation, decree holder would not be able to appropriate physical possession of any part thereof and is required to go in for partition of the joint land. It is claimed that impugned order vide which warrants of possession have been issued against the judgment debtor thus is legally not correct and needs to be reversed. Counsel for the petitioner has further urged that actual possession of any part of joint land would be available to the decree holder only by getting partition of land by metes and bounds. 2. Both the respondents were served but none had been appearing for them. 3. Going through the grounds of revision petition and the impugned order, arguments have been heard. 4. It is a fact that warrants of possession of suit land had been issued against the petitioners-judgment debtor. Vide report dated 14.10.2010 possession of the joint land was delivered to the decree holder. Order dated 16.10.2010 reveals that on delivery of possession to the decree holder by the judgment debtors, execution petition was dismissed as fully satisfied. 5. It was much later that a fresh execution petition was preferred seeking the same relief as had already been granted vide order dated 14.10.2010. It is strange that if possession had already been delivered to the decree holder why fresh execution petition has been preferred by him. It is rather noteworthy that once the judgment debtors have become co-owners, delivery of physical possession is not possible. Counsel for the petitioner herein has placed reliance upon Ram Singh Versus Gurnam Singh, 1989 PLJ 446 wherein referring to Order XXI Rule 35, it has been held that in execution application symbolic possession can be delivered to the decree holder but actual possession is to be obtained by him after the property is partitioned. 6. Perusal of order dated 16.10.2010 of the Executing Court when is read in relation to the execution petition now pending, it is irreconcilable that when actual possession had already been delivered, there was no necessity of filing the execution petition once more. 6. Perusal of order dated 16.10.2010 of the Executing Court when is read in relation to the execution petition now pending, it is irreconcilable that when actual possession had already been delivered, there was no necessity of filing the execution petition once more. It rather transpires that the execution petition was preferred by the decree holder to retrieve actual possession. Even order of the lower Court presents contradiction in terms. Once executing Court has observed that actual possession of the property had been delivered to the decree holder on 16.10.2010 why warrant of possession of the property of the judgment-debtors have once more been issued is not explained. Though the trial Court has made reference to statement of the judgment debtors but it is no where part of the record. 7. The impugned order thus is self destructive because contradictory facts have been put forth in the order. On the one hand, there is finding that actual possession of the property had been delivered on 16.10.2010, on the other hand warrant of possession has again been issued vide the impugned order. 8. Accepting the present revision petition and setting aside the impugned order, the matter is remanded to the lower Court for deciding the objection petition of the judgment debtors afresh in accordance with law. The parties shall appear before the trial Court on 29.10.2014. ---------0.B.S.0------------ ----------------------------