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2015 DIGILAW 1783 (HP)

Jagdish Singh v. Gurmeet Singh

2015-12-04

TARLOK SINGH CHAUHAN

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JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. The petitioners are the judgment debtors, who have filed this petition under Article 227 of the Constitution of India assailing therein the order passed by the learned Civil Judge (Senior Division), Nalagarh on 27.8.2015, whereby he issued warrant of possession of the suit land in terms of the decree sought to be executed. Brief facts may be noticed. 2. This Court while adjudicating RSA No. 617 of 2000, after reversing the concurrent findings rendered by the Court below proceeded to pass judgment in favour of the respondent/decree holder. The operative portion whereof reads as under:- “10. In view of the above discussion, the appeal is allowed. The judgment and decree of the learned trial Court as affirmed by the learned Appellate Court is set-aside and the suit of the plaintiff is decreed in terms of the second agreement Ext.PW-4/A. A decree is passed to the effect that the defendant Jagdish shall on or before 31st October, 2010 file an affidavit alongwith the Tatima showing the land which he offers to the plaintiff in terms of the agreement Ext.PW-4/A. The plaintiff shall be given notice of the said application and he may file his objections thereto and thereafter, if necessary, the learned trial Court shall appoint a Commissioner to identify the land available at the spot. IN case the defendant fails to file such an application or it is found that he is not offering land at the place which was initially agreed to in agreement Ext.PW-4/A the suit of the plaintiff shall be deemed to have been decreed for possession of five biswas of land comprised in Khasra No. 473/1 which is the suit land. The appeal is disposed of in the aforesaid terms. No orders as to costs. Decree sheet be drawn up accordingly.” 3. The decree holder filed execution petition, wherein the petitioner filed objections, which were dismissed by the learned executing Court vide order dated 6.1.2014. Even while dismissing the objections, the learned executing Court offered yet another opportunity to the petitioners to comply with the decree, taking into consideration the fact that the parties were real brothers. The decree holder filed execution petition, wherein the petitioner filed objections, which were dismissed by the learned executing Court vide order dated 6.1.2014. Even while dismissing the objections, the learned executing Court offered yet another opportunity to the petitioners to comply with the decree, taking into consideration the fact that the parties were real brothers. Despite this order, the petitioners did not bother to comply with the decree, ultimately constraining the Court to pass the impugned order, which reads as under:- “Although, this court, vide order dated 6.1.2014, had dismissed an application under Section 151 CPC preferred by the DH and the objections under Section 47 CPC preferred by the JDs, but before issuing warrant of possession of suit land comprised in Khasra No. 473/1, at that stage, this court deeded it just and appropriate to direct JD No. 1 to comply with the decree under execution as the parties are not real brothers, but are in advance age of life. The JD No. 1 has repeatedly failed to comply with the decree under execution. Thus in the aforementioned circumstances, this court has no option except to adhere to the decree under execution and issue warrant of possession of suit land comprised in Khasra No. 473/1 against the JDs. Let warrant of possession of suit land comprised in Khasra No. 473/1, measuring 3 biswas as described in the decree under execution be issued against the JDs, returnable for 12.10.2015, on taking necessary steps within 5 days.” 4. The petitioner has assailed the order primarily on the ground that before passing of the decree by this Court on 11.8.2010, the land which was being offered by the petitioners to the respondent was under charge with the State Bank of Patiala vide rapat No. 253, which was ultimately vacated after application on 20.1.2014 to this effect had been preferred. Thereafter, the decree holder made several requests to the judgment debtors to comply with the order and appear before the learned Registrar-cum-Executive Magistrate to execute the decree, but they failed to do so. 5. I have heard the learned counsel for the petitioner and find that the present petition is yet another device to defeat the fruits of the decree, which the respondent has earned. The learned executing Court had been considerate enough to offer yet another chance to the judgment debtors to comply with the decree, while dismissing the objections on 6.1.2014. 5. I have heard the learned counsel for the petitioner and find that the present petition is yet another device to defeat the fruits of the decree, which the respondent has earned. The learned executing Court had been considerate enough to offer yet another chance to the judgment debtors to comply with the decree, while dismissing the objections on 6.1.2014. Even despite a passage of nearly more than 1 and ½ years, the judgment debtors took no steps to implement the same and it is only after warrants of possession have been issued that they rushed to this Court, that too by raising pleas which have no legs to stand. 6. In Ravinder Kaur vs. Ashok Kumar, (2003) 8 SCC 289 , Hon’ble Supreme Court observed that:- “Courts of law should be careful enough to see through such diabolical plans of the judgment-debtors to deny the decree-holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system.” 7. In N.S.S. Narayana Sarma and Others vs. M/s. Goldstone Exports Pvt. Ltd. and Others, AIR 2002 SC 251 , it was observed that:- “It is a general impression prevailing amongst the litigant public that difficulties of a litigant are by no means over on his getting a decree for immoveable property in his favour. Indeed, his difficulties in real and practical sense arise after getting the decree.” 8. The Hon’ble three Judges Bench of Hon’ble Supreme Court in Satyawati vs. Rajinder Singh and Another, (2013) 9 SCC 491 made the following eye opening observations:- “13. It is really agonizing to learn that the appellant-decree holder is unable to enjoy the fruits of her success even today i.e. in 2013 though the appellant-plaintiff had finally succeeded in January, 1996. As stated hereinabove, the Privy Council in the case of the General Manager of the Raj Durbhnga under the Court of Wards vs. Maharajah Coomar Ramaput Sing had observed that the difficulties of a litigant in India begin when he has obtained a Decree. As stated hereinabove, the Privy Council in the case of the General Manager of the Raj Durbhnga under the Court of Wards vs. Maharajah Coomar Ramaput Sing had observed that the difficulties of a litigant in India begin when he has obtained a Decree. Even in 1925, while quoting the aforestated judgment of the Privy Council in the case of Kuer Jang Bahadur vs. Bank of Upper India Limited Lucknow, AIR 1925 Oudh 448, the Court was constrained to observe that Courts in India have to be careful to see that process of the Court and law of procedure are not abused by the judgment-debtors in such a way as to make Courts of law instrumental in defrauding creditors, who have obtained decrees in accordance with their rights. 14. In spite of the aforestated observation made in 1925, this Court was again constrained to observe in Babu Lal vs. M/s. Hazari Lal Kishori Lal and Others, (1982) 1 SCC 525 in para 29 that Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree holder starts in getting possession in pursuance of the decree obtained by him. The judgment debtor tries to thwart the execution by all possible objections. 15. This Court, again in the case of Marshall Sons & Co. (I) Ltd. vs. Sahi Oretrans Pvt. Ltd. and Another, (1999) 2 SCC 325 was constrained to observe in para 4 of the said judgment that it appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and on occasion, become highly technical accompanied by unending prolixity at every stage providing a legal trap to the unwary. Because of the delay, unscrupulous parties to the proceedings take undue advantage and person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also a known fact that after obtaining a decree for possession of immovable property, its execution takes long time. 16. Because of the delay, unscrupulous parties to the proceedings take undue advantage and person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also a known fact that after obtaining a decree for possession of immovable property, its execution takes long time. 16. Once again in the case of Shub Karan Bubna alias Shub Karan Prasad Bubna vs. Sita Saran Bubna and Others, (2009) 9 SCC 689 at para 27 this Court observed as under:- “In the present system, when preliminary decree for partition is passed, there is no guarantee that the plaintiff will see the fruits of the decree. The proverbial observation by the Privy Council is that the difficulties of a litigant begin when he obtains a decree. It is necessary to remember that success in a suit means nothing to a party unless he gets the relief. Therefore, to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly. This requires a conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant.” 9. The respondent has a decree in his favour, which has to be given effect to and taken to its logical end by delivery of possession in terms thereof. The petitioners have successfully delayed the delivery of possession by five years, living under the illusion that the long arms of the law will fail to reach them. They only need to be reminded that law is not that powerless and its long arms will always throttle such litigants’ caricatures so that the confidence and credibility of the society in judiciary is maintained and survives. 10. Indisputably, the order dated 6.1.2014 whereby the objections filed by the petitioners against the order came to be dismissed, has attained finality and therefore, there is no option left with the petitioners but to give effect to the decree as passed against them. 11. Having said so, there is no merit in this petition and the same is dismissed with costs. Normally, this would have been a fit case where this Court would impose heavy costs, but since no notice has been issued to the opposite side, this Court refrains from doing so.