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2014 DIGILAW 969 (HP)

Rajinder Singh v. Sadhu Ram

2014-07-24

TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J. 1. This petition under Article 227 of the Constitution of India is directed against the order dated 22.4.2014 passed by learned Executing Court whereby it without deciding the objections of the petitioners issued warrant of possession. 2. The facts, in brief, may be noticed. The respondent had filed a suit for possession which was dismissed by the learned trial Court, but the said finding was reversed by the learned lower Appellate Court and the appeal against the same was also dismissed by this Court on 21.10.2009. 3. The respondent filed execution petition in which the petitioners preferred objections under Order 21 Rule 97 CPC. The reply to these objections was also filed. However, the learned trial Court without proceeding in terms of Order 21 Rule 101 CPC, ordered the issuance of warrant of possession vide order dated 22.4.2014 which has been impugned in this proceedings. 4. The petitioners have claimed that the learned Executing court has denied them a fair trial because without adjudicating upon the objections, the warrant of possession could not have directly been issued. 5. I have heard learned counsel for the parties and have also gone through the records carefully. 6. It is not disputed by the learned counsel for the respondent that the objections as raised by the petitioners have not been adjudicated upon. However, he would contend that the same were not required to be adjudicated upon till the time the possession had not been handed over to the decree holder. This plea is not sustainable because similar question came up before the Hon’ble Supreme Court in Babulal vs. Raj Kumar and others, AIR 1996 SC 2050 wherein the Hon’ble Supreme Court after rejecting this very argument observed as follows: “7. It would, therefore, be clear that an adjudication is required to be conducted under Order 21, Rule 98 before removal of the obstruction caused by the object or the appellant and a finding is required to be recorded in that behalf. The order is treated as a decree under Order 21, Rule 103 and it shall be subject to an appeal. Prior to 1976, the order was subject to suit under 1976 Amendment to CPC that may be pending on the date of the commencement of the amended provisions of CPC was secured. The order is treated as a decree under Order 21, Rule 103 and it shall be subject to an appeal. Prior to 1976, the order was subject to suit under 1976 Amendment to CPC that may be pending on the date of the commencement of the amended provisions of CPC was secured. Thereafter, under the amended Code, right of suit under Order 21, Rule 63 of old Code has been taken away. The determination of the question of the right, title or interest of the objector in the immovable property under execution needs to be adjudicated under Order 21, Rule 98 which is an order and is a decree under Order 21, Rule 103 for the purpose of appeal subject to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a complete code in itself. Therefore, the executing Court is required to determine the question, when the appellants had objected to the execution of the decree as against the appellants who were not parties to the decree for specific performance.” 7. At this stage, it shall be fruitful to refer to the decision of this Court in Rajeev Dutta and others vs. Punjab Wakf Board and another, 2002 (3) Shim. L.C. 315 wherein this Court has gone to the extent of holding that where contentious pleas of facts are raised, the Executing Court is bound to hold a detailed inquiry and in the given facts and circumstances, even permit the parties to lead evidence to prove their rival pleas based on facts. 8. It has further been held that where the question(s) raised can be decided on the basis of admitted and undisputed facts a comprehensive inquiry need not be held. But then the procedure as far as applicable to the trial of a suit, as far as practicable will have to be followed in an inquiry under Rule 101. 9. Admittedly, in this case no inquiry whatsoever has been conducted by the learned Executing court as is clear from the copy of the order-sheets annexed with the petition. Therefore, the order passed by the learned trial Court dated 22.4.2014 is unsustainable in the eyes of law and is accordingly set-aside. 10. 9. Admittedly, in this case no inquiry whatsoever has been conducted by the learned Executing court as is clear from the copy of the order-sheets annexed with the petition. Therefore, the order passed by the learned trial Court dated 22.4.2014 is unsustainable in the eyes of law and is accordingly set-aside. 10. In view of the above, the petition is allowed and the learned Executing Court before proceeding to issue warrants of possession is directed to decide the objections raised by the petitioners in accordance with law. The parties through their counsel are directed to appear before the learned Executing Court on 8.8.2014. 11. Interim order dated 26.5.2014 is vacated. The pending application, if any, also stands disposed of.