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2014 DIGILAW 959 (PNJ)

Kartar Singh v. Gurdial Singh

2014-06-30

RAKESH KUMAR JAIN

body2014
JUDGMENT Mr. Rakesh Kumar Jain, J.: - The petitioners have challenged order dated 14.3.2013 (Annexure P-9) passed by the Civil Judge (Jr. Division), dismissing the objections filed by the petitioners/judgment-debtors under Section 47 of the Code of Civil Procedure, 1908 (for short ‘the CPC’). 2. In brief, Smt. Ind Kaur w/o Sunder Singh (predecessor-in-interest of the petitioners) mortgaged with possession land measuring 3 bigha 8 biswa 16 biswansi to Badna and Bishna sons of Gulab Singh (predecessor-in- interest of the respondents) vide registered mortgage deed dated 21.5.1920 for a sum of Rs.950/- followed by a mutation. Respondents No.1 to 7/mortgagees filed suit for declaration that they have become the owners of the property in dispute due to efflux of time and also sought permanent injunction to restrain the mortgagers/petitioners from interfering in their peaceful possession. The suit was dismissed as withdrawn on 21.11.1981. The mortgagees again filed suit for declaration that they are owners of the land measuring 1 bigha 1 biswas 0 biswansi comprised in Khasra Nos. 369 and 370 on the ground that they have been dispossessed forcibly by the mortgagers/petitioners. The suit was dismissed on 23.1.1984 on the ground that it was barred by the principles of res judicata and as per provisions of Order 23 Rule 1 and Order 2 Rule 2 of the CPC. The mortgagees filed appeal against the said judgment and decree dated 23.1.1984, which was partly allowed and the suit regarding possession of 1 bigha 9 biswa was decreed and the declaration of having become the owner by way of efflux of time was dismissed. The mortgagers challenged the judgment and decree of the Appellate Court dated 5.2.1986 by way of RSA No.1861 of 1986 whereas the mortgagees did not file any appeal against the judgment and decree of the Appellate Court insofar as the part of the suit regarding declaration that they have become the owners by efflux of time was declined. 3. The decree holders/petitioners in the aforesaid suit, filed an execution application on 13.5.1986 in which objections, filed under Section 47 of the CPC, on 13.10.1988 and another objection filed by the mortgagers, were dismissed on 27.10.1989. 3. The decree holders/petitioners in the aforesaid suit, filed an execution application on 13.5.1986 in which objections, filed under Section 47 of the CPC, on 13.10.1988 and another objection filed by the mortgagers, were dismissed on 27.10.1989. The petitioners filed third objection on 11.10.1990 to the effect that khasra numbers have been changed due to consolidation in the village and therefore, the possession may be given after due verification of the khasra numbers but the said objection was dismissed in default and the application for its restoration was also dismissed on 13.2.1992. However, Civil Revision No.1473 of 1992 filed by the mortgagers was disposed of on 14.12.1992 by this Court and allowed the petitioners/mortgagers to lead evidence and directed the Executing Court to fix mesne profits, which have already been deposited. 4. The mortgagers filed an application under Section 4 of the Redemption of Mortgages of Punjab Act, 1913 [for short ‘the Act’] before the Collector, Ludhiana which was dismissed on 29.6.1987. They filed suit for declaration to the effect that the order dated 29.6.1987 is illegal but the same was dismissed on 30.8.1999 on the ground that limitation for redemption had expired. The appeal filed by the mortgagers was also dismissed on 28.2.2002, which has not been further challenged by the mortgagers by way of second appeal. 5. The mortgagers have now again filed objections on 14.1.2013 alleging that in view of the Full Bench judgment of this Court in “Ram Kishan and others Vs. Sheo Ram” [2008(1) Law Herald (P&H) 46 (FB)] : 2008(1) PLR 1 , there is no limitation for redemption of usufructuary mortgage, therefore, the land may be allowed to be redeemed on the payment of mortgage money. 6. The objections have been dismissed by the trial Court, inter alia, on the ground that no such order could be passed on the objection filed under Section 47 of the CPC rather the objector should have filed a separate suit. 7. Learned counsel for the petitioners has submitted that as per Section 47 of the CPC, all questions arising between the parties had to be determined in the objection and not in a separate suit. 7. Learned counsel for the petitioners has submitted that as per Section 47 of the CPC, all questions arising between the parties had to be determined in the objection and not in a separate suit. He argued that once a decree has been granted by the Appellate Court on 5.2.1986 of the foreclosure of the right of redemption, the objections filed by the petitioners should have been treated to be a regular suit for the purpose of redemption of the mortgage about which there is no dispute. 8. On the other hand, learned counsel for the respondents has submitted that the objections filed under Section 47 of the CPC is not maintainable for the purpose of redemption as it can be used for deciding all the disputes in respect of the execution of the decree in order to avoid a separate suit. 9. I have heard both the learned counsel for the parties and perused the record. 10. A few facts are not disputed, registered mortgage with possession of the land in dispute, initially the mortgagees’ suit for fore-closer of redemption was dismissed and has been granted decree by the Appellate Court by partly accepting the suit to the effect that “it is ordered that the appeal is hereby accepted partly and the plaintiffs are entitled to get a relief of possession of the land measuring 1B-9B-0B comprised in khasra Nos.369 and 370, as claimed in the suit and a decree is hereby passed for possession with respect to these khasra numbers in their favour against defendants, with no order as to costs, in view of the divided success between the parties. The appeal of the appellants with regard to declaration is hereby dismissed”. 11. It may be pointed out that the second appeal bearing RSA No.1861 of 1986 filed by the defendants was dismissed. 12. As a matter of fact, the decree holder is executing the decree granted by the Appellate Court on 5.2.1986 for recovering possession of the mortgaged land which was forcibly taken by the mortgagers. The petitioners, who have filed the objections are trying to seek redemption of the land in dispute though their suit for redemption has already been dismissed vide judgment and decree dated 28.2.2002 passed by the lower Appellate Court against which no appeal has been filed. 13. The petitioners, who have filed the objections are trying to seek redemption of the land in dispute though their suit for redemption has already been dismissed vide judgment and decree dated 28.2.2002 passed by the lower Appellate Court against which no appeal has been filed. 13. The question thus arises is that “after the dismissal of the suit of the objectors/petitioners for seeking redemption of the land in dispute, the redemption could still be ordered by way of filing objections under Section 47 of the CPC when the decree holder is only seeking execution of the decree for the purpose of recovery of possession, which was forcibly taken by the mortgagers/petitioners?” 14. In this regard, Section 47 of the CPC needs to be referred to : - “S.47 Questions to be determined by the Court executing decree – (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. (2) Omitted by Act 104 of 1976 (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section be determined by the Court. Explanation-I – For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation-II – (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) All questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.” 15. As per Section 47 CPC, all questions arising between the parties to the suit in which the decree is passed are to be determined by the Court executing the decree and for that separate suit is not required to be filed. In this regard, the objections have to be filed in respect of the decree which is sought to be executed by the decree holder. In this regard, the objections have to be filed in respect of the decree which is sought to be executed by the decree holder. In the present case, the suit filed by the plaintiff/decree holders regarding the fore-closure of the redemption was dismissed, but they were granted the decree for possession of the land measuring 1 Bigha 1 Biswa 00 Biswansi comprising in Khasra No.369/370 which was also mortgaged by the mortgagor with possession and had taken forcible possession thereof without getting it redeemed in accordance with law. 16. Thus, all the questions, which would arise with regard to the execution of the decree to restore possession of the mortgaged land for which the decree has been passed, are to be decided by way of objections under Section 47 CPC, but the redemption of mortgage cannot be ordered on the basis of the judgment of this Court in Ram Kishan’s case(supra). The petitioners have already lost in their application filed under Section 4 of the Act before the Collector, Ludhiana on 29.06.1987; suit filed to challenge that order has already been dismissed on 30.08.1999 and their appeal was also dismissed on 28.02.2002 which was not further challenged by them by way of second appeal. Thus, the petitioners have already taken up the remedy of seeking redemption of the mortgage and after having been lost therein, they cannot raise objection in the present execution application for getting possession over the property in dispute by way of redemption in view of the judgment of this Court in Ram Kishan’s case (supra). 17. In view of the above, I do not find any merit in the present revision petition and hence, the same is hereby dismissed. ---------0.B.S.0------------