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2015 DIGILAW 1707 (HP)

Gokal Chand v. Reeta

2015-11-19

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 16.6.2005 rendered by the District Judge, Mandi in Civil Appeal No. 24 of 2004. 2. “Key facts” necessary for the adjudication of this appeal are that appellant-plaintiff (hereinafter referred to as the “plaintiff” for convenience sake) filed a suit for declaration to the effect that the judgment and decree dated 15.1.1998 rendered by the Senior Sub Judge, Mandi in Execution Petition No. 66/94, titled as Khem Singh vs. Gokal Chand, being hit by section 44 of the Evidence Act are nullity in the eyes of law having been obtained by the respondent-decree holder, predecessor-in-interest of the defendants, by playing a fraud upon the court. According to the averments made in the plaint, plaintiff herein was defendant in the case titled as Khem Singh vs. Gokual Chand bearing Civil Suit No. 177/1974. It was decreed in favour of Khem Singh, predecessor-in-interest of the defendants, vide judgment dated 9.1.1981. The trial Court directed the plaintiff in the civil suit to deposit a Rs. 8000 on or before 9.2.1981. Gokul Chand who is defendant No. 1 in the civil suit, i.e. plaintiff in the present proceedings, filed an appeal, which was assigned to the Additional District Judge, Mandi. Learned Additional District Judge, Mandi granted ex-parte stay against the impugned judgment and decree rendered by the Senior Sub-Judge. Khem Chand, who was respondent in the appeal, was not served with the copy of stay order, passed by the Additional District Judge, Mandi on 9.2.1981. Later on, appeal filed by Gokul Chand i.e. defendant No. 1 was got dismissed on 19.8.1981. Khem Chand pre-emptor in the previous suit moved an application before the Additional District Judge, Mandi for granting permission for depositing pre-emption money. Additional District Judge vide order dated 30.9.1981 granted extension of time to deposit the preemption money upto 30.10.1981. Later on, pre-emption money was deposited. Defendant No.1, plaintiff herein, filed a revision petition before this Court which was dismissed on 2.7.1985. The Special Leave Petition filed by the plaintiff was also dismissed by the Hon’ble Supreme Court on 22.8.1994. Thereafter, legal representatives of Khem Singh, i.e. defendants herein, moved an application for execution of decree. The Executing Court summoned the concerned file. Initially, the file was found not to be traceable and the same was re-constructed. 3. Suit was contested by the defendants. Thereafter, legal representatives of Khem Singh, i.e. defendants herein, moved an application for execution of decree. The Executing Court summoned the concerned file. Initially, the file was found not to be traceable and the same was re-constructed. 3. Suit was contested by the defendants. According to the defendants, the judgment/order has been upheld up to the Hon’ble Supreme Court. 4. Plaintiff filed replication. Issues were framed by the Civil Judge (Jr. Division), Court No. 3, Mandi on 5.7.2000. He dismissed the suit on 14.1.2004. Plaintiff preferred an appeal before the District Judge, Mandi. He also dismissed the same on 16.6.2005. Hence, the present appeal. It was admitted on the following substantial questions of law: 1. Whether the execution petition filed on the basis of the judgment and decree dated 9.1.1981 in the year 1998, was barred by limitations and could not be entertained and warrant of possession could not be ordered to be issued? 2. Whether the Punjab pre-emption Act having been repealed with effect from 8.5.1987, therefore, on account of this subsequent event it, rendered the judgment and decree dated 9.1.1981 unexecutable and the same could not be enforced? 3. Whether the appellant as well as defendant No. 2 being Harijan by caste, therefore, on account of Notification Ext. PW1/E, which came in force on 23.8.1984, the decree for Pre-Emption dated 9.1.1981 is not executable? 4. Whether in the execution petition, respondents-decree holders, contravened the provisions of Section 44 of the Indian Evidence Act as set up in the plaint and therefore the appellant is entitled for restoration of the possession of the land in question? 5. Mr. G.D. Verma, learned Senior Advocate, on the basis of the substantial questions of law framed, has vehemently argued that the execution on the basis of judgment and decree dated 9.1.1981 in the year 1988 was barred by limitation. He has also contended that the judgment and decree dated 9.1.1981 could not be executed after repeal of Punjab Pre-emption Act w.e.f. 8.5.1987. He has lastly contended that since the notification Ext. PW- 1/E came into force on 23.8.1984, the decree for preemption was not executable. He has also referred to Section 44 of the Indian Evidence Act. 6. Mr. G.R. Palsra, Advocate has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have gone through the records carefully. 8. He has also referred to Section 44 of the Indian Evidence Act. 6. Mr. G.R. Palsra, Advocate has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have gone through the records carefully. 8. Since all the substantial questions of law are interconnected and interlinked the same are taken up together for determination to avoid repetition of discussion of evidence. 9. Civil Suit No. 177/1974 was decided by the learned Senior Sub Judge Mandi vide judgment and decree dated 9.1.1981, Ext. PW-1/B. The operative portion of the judgment dated 9.1.1981 reads as under: “In view of my above findings on issues No.1 to 3 being in favour of the plaintiff and against the defendants the suit of the plaintiff for possession by way of pre-emption is declared subject to the plaintiff depositing a sum of Rs. 8,000/- (including 1/5th pre-emption money already deposited in the court) on or before 9.2.1981 failing which the suit of the plaintiff shall stand dismissed. The suit is accordingly decreed with costs.” 10. The plaintiff-decree holder was ordered to deposit the amount on or before 9.2.1981. An application was filed before the learned Additional District Judge, Mandi vide CMP No. 10/81 for enlargement of time for depositing pre-emption money. It was specifically stated in the application that Gokul Chand preferred an appeal against the judgment and decree dated 9.1.1981 and the operation of the judgment and decree was stayed by the Additional District Judge, Mandi till 16.2.1981. The amount could not be deposited. The stay order was made absolute on 24.2.1981. The Additional District Judge vide order dated 30.9.1981 Ext. PW-1/D granted extension of time to Khem Singh for depositing the remaining preemption amount in terms of the judgment and decree passed by the trial Court by 30.10.1981. Gokul Chand plaintiff herein filed civil revision No. 221/1981 before this Court. It was dismissed by this Court on 2.7.1985. The Decree holder deposited the amount on or before 30.10.1981. He filed special leave petition before the Hon’ble Supreme Court. The Hon’ble Supreme Court dismissed the special leave petition vide order dated 22.8.1994, Ext. D-2. The issues raised by Mr. G.D. Verma, learned Senior Advocate have already been decided by this Court in the revision petition vide judgment dated 22.7.1985. Objections were also filed by the Judgment Debtor. He filed special leave petition before the Hon’ble Supreme Court. The Hon’ble Supreme Court dismissed the special leave petition vide order dated 22.8.1994, Ext. D-2. The issues raised by Mr. G.D. Verma, learned Senior Advocate have already been decided by this Court in the revision petition vide judgment dated 22.7.1985. Objections were also filed by the Judgment Debtor. All the objections were duly considered by the executing Court as per order dated 15.1.1998. The order dated 15.1.1998 has attained finality and the Punjab Preemption Act was repealed in the year 1987. The execution petition was filed within the prescribed limitation. 11. Now, as far as the notification dated 23.8.1984 is concerned, the plaintiff cannot derive any benefit from the same since the judgment and decree in question is dated 9.1.1981. The Judgment and decree dated 9.1.1981 has attained finality since the appeal filed by the plaintiff herein who was defendant in the previous suit was decided on 19.8.1981. The notification dated 23.8.1984 would not apply retrospectively. The plaintiff has failed to prove how order dated 15.1.1998 was obtained by the defendant by playing any kind of fraud. The plaintiff has unnecessarily filed this regular second appeal to prolong the litigation. He has lost the case up to Hon’ble Supreme Court. Section 44 of the Indian Evidence Act is not at all attracted in this case. 12. The courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well reasoned judgments and decrees passed by both the courts below. 13. The substantial questions of law are answered accordingly. 14. In view of the analysis and discussion made hereinabove, there is no merit in the present appeal and the same is dismissed. Pending applications, if any, also stands disposed of. There shall, however, be no order as to costs.