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2014 DIGILAW 141 (HP)

Vijay Pal v. Biasan Devi

2014-03-03

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J. (oral). Challenge herein is to an order passed by learned Civil Judge (Junior Division), Court No.1, Hamirpur in Execution Petition No. 157 of 2009 whereby while dismissing the objections filed by the petitioners (hereinafter referred to as the judgment debtors), warrant of possession has been ordered to be issued. 2. The judgment debtors admittedly suffer decree passed by learned Sub Judge 1st Class (1) Hamirpur in Civil Suit No. RBT 293 of 1994 on 30.9.2002, modified further by learned District Judge, Hamirpur vide judgment and decree dated 1.1.2005 holding thereby the respondent-plaintiff entitled for possession of land measuring two kanals bearing Khasra No.548/4 and restraining the judgment debtors by way of the decree of permanent prohibitory injunction from causing any sort of interference in the suit land bearing Khasra No.548 (except Khasra No.548/2 and 548/3). RSA No.154/05 preferred by the decree holder-plaintiff, however, was dismissed by this Court vide judgment dated 16.5.2005. The judgment and decree sought to be executed by initiating execution proceedings in the trial Court has thus attained finality. Hence the petition under Order 21 Rule 11 CPC, registered as CMA No.157 of 2009 preferred by the plaintiff-decree holders in the trial Court. 3. The judgment debtors in reply/objections preferred thereto have submitted that the decree passed by learned District Judge having been merged into the judgment and decree passed by this Court in appeal, the Executing Court could have only executed the judgment and decree dated 30.9.2002 (wrongly typed as 2009) passed in the main suit (Civil Suit No.RBT 293 of 1994). Also that the decree cannot be executed for want of proper identification of the land and also that in view of the valuation of the structure Rs.5,00,000/-, the decree passed by learned trial Court without jurisdiction is nullity. Also that the petitioner-DH impleaded as legal representative of original plaintiff Gitan Devi pursuant to a Will dated 27.1.2010, which is under challenge in Civil Suit No.6 of 2010 titled Prem Sagar versus Biasan Devi, pending disposal before Civil Judge (Junior Division), Court No.2, Hamirpur, is not legally entitled to seek the execution of the decree. Also that Gitan Devi, the original plaintiff, had two sons, who are necessary parties and the present petitioner is not entitled to pursue the execution petition. 4. Also that Gitan Devi, the original plaintiff, had two sons, who are necessary parties and the present petitioner is not entitled to pursue the execution petition. 4. Learned trial Judge as noticed supra, has however, dismissed the objection so raised and ordered to issue the warrant of possession. The legality and validity of the impugned order though has been assailed on several grounds, however, mainly that the dismissal of the objections raised by the judgment debtors without framing proper issues, is not legally sustainable. The status of the respondent-DH as legal heir of the original plaintiff Gitan Devi has also been disputed. It is further submitted that the Will, on the basis of which she claims to be the legal heir of deceased plaintiff Gitan Devi, is under challenge in the suit filed by Shri Prem Sagar son of the deceased plaintiff, therefore, unless and until the suit is decided, the respondent-DH is not entitled to seek the execution of the decree. 5. Shri G.D. Verma, learned Senior Advocate assisted by Mr. B.C. Verma, Advocate, during the course of arguments, has urged that without framing issues with respect to the objections raised by the judgment debtors, the objections so raised could have not been dismissed. 6. On the other hand, Shri Bhupender Gupta, learned Senior Advocate assisted by Ms. Charu Gupta, Advocate representing the respondent-DH has vehemently contended that in view of the nature of the objections raised no issue either arises or required to be framed and as such the Court below has not committed any illegality and irregularity while dismissing the objections and issuing warrant of possession of the land in question. 7. As per Section 47 of the Code of Civil Procedure, all questions arising between the parties in the suit in which the decree was passed and relating to the execution are to be determined by the Executing Court and not by a separate suit. It is well settled that the Executing Court must decide the question of fact raised by way of objections relating to execution of the decree by framing necessary issues and by allowing the parties to lead evidence of course subject to the nature and tenor of the objections raised by the judgment debtors. Therefore there cannot be any quarrel qua such legal position even settled also by way of various judicial pronouncements. 8. Therefore there cannot be any quarrel qua such legal position even settled also by way of various judicial pronouncements. 8. The objections raised by the judgment debtors in the case in hand, however, do not pertain to the question of facts and rather legal in nature because thereby mainly the competency of the present respondent-DH Biasan Devi to seek the execution of the decree has been questioned on the ground that the Will on the basis whereof she claims herself to be the legal representative of the deceased plaintiff Gitan Devi is not genuine and rather subject matter of dispute in Civil Suit No.6 of 2010 preferred by Shri Prem Sagar son of the original plaintiff, pending adjudication in the Court of Civil Judge (Junior Division), Court No.2, Hamirpur. Therefore, according to the judgment debtors, unless and until that suit is disposed of, the decree cannot be executed. I fail to understand as to how this objection is a question of fact and relevant in this case for the reason that the judgment debtors suffer a decree. As per the decree they have to part with the possession of the suit land. In terms of the decree Shri Prem Sagar was not a party in the main suit in which the decree sought to be executed has been passed. Said Shri Prem Sagar, as is disclosed from the record, is rather the son of Gitan Devi, the original plaintiff. The present respondent-decree holder Biasan Devi is his sister-in-law (Bhabhi), being the wife of his brother Raj Kumar. Biasan Devi, who is daughter-in-law of the original plaintiff Gitan Devi, therefore, on her death had filed an application for her substitution as the sole legal representatives of deceased Gitan Devi on the basis of registered Will. Therefore, it lies ill in their mouth that the respondent-decree holder is not legally entitled to seek the execution of the decree. Otherwise also, in case Shri Prem Sagar succeeds in the suit, in which he has challenged the Will in question, it is not the judgment debtors going to be benefited thereby because they suffer the decree and as such have to part with the possession of the land in dispute. Otherwise also, in case Shri Prem Sagar succeeds in the suit, in which he has challenged the Will in question, it is not the judgment debtors going to be benefited thereby because they suffer the decree and as such have to part with the possession of the land in dispute. The land ultimately will go to said Shri Prem Sagar or by way of inheritance to the legal heir of said Smt. Gitan Devi including Shri Raj Kumar, the husband of present respondent Biasan Devi in case the suit instituted by Shri Prem Sagar succeeds. The objections therefore, raised are frivolous and in my considered opinion merely to delay the execution proceedings. If it is so, no issue is required to be framed in respect of such objection nor any evidence is required to be produced in respect thereof and the Executing Court rather can dispose of the objections summarily. Ratio of the law laid down by this Court in Hari Dass versus Amar Pal & another, 2005(2) Shim.LC 280, M/s K.N. Trading Company versus Masonic Fraternity of Shimla, 1995(2) Shim.LC 342 and Surinder Singh versus Shri Kehar, 2013 (1) Shim. LC 471, can be pressed into service. 9. The ratio of the judgment in Sohan Lal versus Sadhu Ram, Latest HLJ 2003 (HP) 154, is hardly of any help to the case of the judgment debtors and otherwise also distinguishable on facts because in that case after obtaining the decree in his favour the decree holder entered into an agreement with the judgment debtors qua sale of the suit land for consideration. Such however, is not the position in the case in hand. The judgment of this Court in Dhanna Lal Gupta versus Prem Lata & another, Latest HLJ 2013 (HP)9, pressed into service on behalf of the judgment debtors is again not of any help to their case for the reason that the law laid down therein rather reveals that the decree holder cannot be deprived of the fruits of the decree and if appears that on account of frivolous objections, the process of the Court is being abused, heavy and exemplary costs should be imposed upon the party doing so. As per the law laid down in this judgment, no doubt, a comprehensive inquiry is emphasized, however, only in those cases where the facts are disputed one and not admitted, however, in the case in hand, what to speak of disputed facts, no question of facts, however, is raised by way of objections by the judgment debtors as pointed out hereinabove. The objection qua the pecuniary jurisdiction of the trial Court is absolutely frivolous for the reasons that there is no decree for demolition of the structure allegedly valuing more than Rs.5,00,000/- passed in this case. It is for this reason learned Senior Advocate has not agitated this point during the course of arguments. 10. The question of identification of land in question cannot also be allowed to be raised in the execution petition for the reason that the same had already gone into during the course of trial and the decree was passed thereafter. 11. The question of non-joinder and mis-joinder of parties as raised in the execution proceedings has also been gone into while answering issue No.7 against the defendants-judgment debtors by learned trial Judge. Therefore, they cannot be allowed to raise this objection also in execution proceedings. It is thus seen that the objections being frivolous and raised merely for rejection have rightly been dismissed by the Executing Court as the Court neither is under any obligation to frame any issue with respect to such objections nor to record any evidence thereon. Therefore, the order passed by the Court below being legally and factually sustainable calls for no interference by this Court in these proceedings. 12. In view of the above, this petition fails and the same is accordingly dismissed. Pending application(s), if any shall also stand dismissed.