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2019 DIGILAW 2613 (RAJ)

Mohan Singh v. Gurmeet Kaur

2019-09-27

ABHAY CHATURVEDI

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JUDGMENT : Abhay Chaturvedi, J. The present writ petition has been filed challenging the order dated 21.02.2013 (Annexure-P/15) passed by Civil Judge (Jr. Division) and Judicial Magistrate, First Class, Vijaynagar, district Sri Ganganagar in Execution Proceeding No.61/96 (Dilip Singh & Ors. Vs. Pritam Singh), whereby the executing court allowed the application of respondent No.1, Pritam Singh and execution proceedings were ordered to be dropped holding that the decree passed by Additional District Judge, Raisinghnagar in Appeal No.5/94 dated 24.09.1996 has been satisfied and possession of the disputed property has been handed over to respondent No.2, Puran Singh s/o Dilip Singh, the decree holder. 2. Brief facts relevant and necessary for the disposal of the present writ petition are that one Dilip Singh, father of the present petitioners and respondent No.2, purchased a residential plot No.30 in Chak No.8-APD, at present Chak No.7-APD (Bhatiwala) from Hari Ram on 08.09.1969. Respondent No.1 - Pritam Singh allegedly had taken possession of the property in question illegally. Dilip Singh filed a civil suit before the Additional Civil Judge (Jr. Division) & Judicial Magistrate, First Class, Anoopgarh for dispossession of the respondent No.1 from the property in question. The trial court dismissed the suit vide judgment and decree dated 02.09.1994 (Annexure-P/1). 3. Feeling aggrieved against the judgment and decree dated 02.09.1994 passed by the trial court, Dilip Singh preferred an appeal before Additional District Judge, Raisinghnagar. The appellate court allowed the appeal and set aside the judgment passed by the trial court vide judgment dated 24.09.1996 (Annexure-P/2). 4. The decree-holder Dilip Singh filed an execution petition before Civil Judge, (Jr. Division), Srivijaynagar, Sriganganagar in the year 1996 bearing Execution Petition No.61/96. Respondent No.1 - Pritam Singh filed an objection under Section 47 CPC, which was dismissed by the trial court vide order dated 23.07.2003 (Annexure-P/3) and a warrant under Order 21 Rule 35 CPC was issued to deliver the possession of the property in question to Dilip Singh from the respondent No.1 - Pritam Singh. The Najir of the court proceeded to take the possession of the property in question pursuant to the said warrant. The family members of the respondent No.1 objected to it, by putting locks on the gate of the house and came out of the house and as such made obstruction in taking possession. The Najir of the court proceeded to take the possession of the property in question pursuant to the said warrant. The family members of the respondent No.1 objected to it, by putting locks on the gate of the house and came out of the house and as such made obstruction in taking possession. Ultimately, Shri Kamal Kumar, Najir of the court put additional locks on the gate of the house and key of which was handed over to the trial court and reported the matter to the court on 04.08.2003 (Annexure-P/4). 5. During the pendency of the execution petition, Dilip Singh died on 21.10.2007. The present petitioner, Sher Singh moved an application under Order 22 Rule 3 & 5 CPC with the prayer to take Legal Representatives of the decree holder, Dilip Singh, on record. The trial court allowed the application vide order dated 18.10.2011 (Annexure P/8) and legal representatives of Dilip Singh viz. Sher Singh, Amrik Kaur, Puran Singh (respondent No.2) and Simar Kaur were taken on record. Thereafter, on the application of Sher Singh, on the death of one of the Legal Representatives Simar Kaur, her legal representatives Rajpal, Veerpal and Nazam Singh were taken on record. 6. On 31.08.2012, the respondent No.1- Pritam Singh moved an application before the executing court mentioning, therein, that Puran Singh (respondent No.2), the legal representative of Dilip Singh, has made a payment of Rs.2,00,000/- to him in lieu of the construction made by him over the property in question and he has given the possession of the property in question to Puran Singh and a prayer was made that the execution proceedings be dropped in the matter as no further proceeding remains to be done. 7. The present petitioner moved an application-cum-reply in response to the application dated 31.08.2012 submitted by Pritam Singh, respondent No.1, contending therein that possession of the property in dispute had not been handed over by Pritam Singh, the respondent No.1 to Puran Singh, the respondent No.2 and the possession was still with Pritam Singh. Both the respondents namely Pritam Singh and Puran Singh had made the collusion just to nullify the execution proceedings. It was further averred that the respondents have broken the locks put on the gate by the Nazir and entered in the property. He prayed for criminal proceedings be initiated against both the respondents, herein, for their illegal act. Both the respondents namely Pritam Singh and Puran Singh had made the collusion just to nullify the execution proceedings. It was further averred that the respondents have broken the locks put on the gate by the Nazir and entered in the property. He prayed for criminal proceedings be initiated against both the respondents, herein, for their illegal act. The executing court after hearing the parties, accepted the application of respondent No.1 Pritam Singh and ordered to drop the execution proceedings vide impugned order dated 21.02.2013 (Annexure-P/15) holding that decree has been satisfied. Hence, the petitioners have challenged the impugned order dated 21.02.2013 by way of filing the present writ petition. 8. Learned counsel for the petitioner submitted that both the respondents herein Pritam Singh and Puran Singh had made the collusion just to grab the property in question. In fact, the possession of the property in question was still with the respondent No.1 - Pritam Singh. The application dated 31.08.2012 was filed by the respondent No.1 with a view to just nullify the execution proceedings. It was further submitted that there are several other Legal Representatives of deceased Dilip Singh, the Decree Holder. The respondent No.2 - Puran Singh, being one of the legal representatives, had no authority to enter into compromise with the Judgment debtor without the knowledge and consent of other legal representatives of the decree holder. The executing court has not taken into consideration this aspect of the matter, hence the impugned order dated 21.02.2013 is liable to be quashed. It was further alleged that Kamal Kumar, Nazir of the court, proceeded to take possession of the property in question in compliance of the warrant issued by the Court under Order 21 Rule 35 CPC. The family members of the respondent No.1 objected to it. He, therefore, put an additional lock on the gate of the house and the key was handed over to the executing court. The possession over the property in question was with the Court and there was no possession with the respondent No.1 on the property in question. As such, there is no question of handing over the possession of the property in question to respondent No.2 - Puran Singh by the Judgment debtor. The possession over the property in question was with the Court and there was no possession with the respondent No.1 on the property in question. As such, there is no question of handing over the possession of the property in question to respondent No.2 - Puran Singh by the Judgment debtor. The locks put on the gate of the house were broken by the respondents herein, but the executing court instead taking any action against them, dropped the execution proceedings holding that the decree has been satisfied. Such approach of the Executing Court is not tenable in the eye of law. Learned counsel for the petitioners, thus, implored the Court to quash and set aside the impugned order dated 21.02.2013. 9. Per contra, learned counsel for the respondents supported the impugned order dated 21.02.2013 and submitted that the trial court has passed the impugned order after considering the material available on record and the same is in accordance with law. It was further submitted that admittedly the respondent No.2, Puran Singh, is one of the legal representatives of the decree holder Dilip Singh as on the death of Dilip Singh, he was duly taken on record as Legal Representatives of decree holder, Dilip Singh, thus, he was competent to take the possession of the disputed property from the Judgment debtor i.e. respondent No.1 - Pritam Singh. Lastly, he implored the Court to dismiss the writ petition. 10. Heard learned counsel for the parties and perused the material available on record. 11. A perusal of the material placed on record goes to show that the Decree Holder, the deceased Dilip Singh filed an execution petition for taking possession of the property in question before the executing court. During the pendency of the execution petition, the decree holder Dilip Singh expired and on the application of the petitioner Sher Singh under Order 22 Rule 3(5) read with Section 151 CPC, the executing court taken the legal representatives of the decree holder, Dilip Singh viz. Sher Singh, Amrik Kaur, Puran Singh (respondent No.2) and Simar Kaur on record and after the death of Simar Kaur d/o Dilip Singh, her legal representatives were also taken on record vide order dated 18.10.2011. 12. Sher Singh, Amrik Kaur, Puran Singh (respondent No.2) and Simar Kaur on record and after the death of Simar Kaur d/o Dilip Singh, her legal representatives were also taken on record vide order dated 18.10.2011. 12. The respondent No.1 Pritam Singh submitted an application to the effect that he has handed over the possession of the disputed property to the respondent No.2, one of the legal representatives of the decree holder, Dilip Singh after receiving Rs.2 Lakhs towards construction on the disputed property. Respondent No.2 Puran Singh also admitted the fact of receiving possession of the property from the respondent No.1, Pritam Singh in the application dated 31.08.2012. In these circumstances, the executing court found the decree to be satisfied and execution proceedings were dropped vide impugned order dated 21.02.2013. 13. In view of the above, there was no reason, whatsoever, before the executing court to keep the execution proceedings pending any more. If, there was any dispute between the decree holders inter se, that was beyond the scope of the execution proceedings pending before the executing court. 14. So far as the plea of the learned counsel for the petitioner that no action was taken by the trial court for breaking out the locks put on the gate of the property in question, it is borne out from the record that Kamal Kumar, Nazir proceeded to take possession of the property in question in compliance of the warrant issued under Order 21 Rule 35 CPC and put locks on the gate of the disputed property and then locks were alleged to be broken by the respondent No.1 but the executing court did not deem it proper to take any action in this regard after the satisfaction of the decree. Shri Kamal Kumar, Nazir of the Court put locks on the gate of the disputed property on 04.08.2003 as mentioned in his report dated 04.08.2003 (Annexure-P/4), and respondent No.1 Pritam Singh informed the Court vide application dated 31.08.2012 that he has handed over possession to respondent No.2, Puran Singh. There is no evidence as to who had the possession of the disputed property during this long period of 09 years. There is no evidence as to who had the possession of the disputed property during this long period of 09 years. In these circumstances, as a matter of fact, the possession of the disputed property has already been handed over and thus, the decree has been satisfied and the execution proceedings have also been dropped by the executing court, therefore, it would not be appropriate for this Court to direct the executing court at this juncture to go into the disputed questions of facts after a period of nine years,. 15. In the peculiar facts of the case, it may be observed here that the Executing Court should have passed the order for protecting the rights and interest of the petitioners with regard to the disputed property in the light of provision regarding Joint decree holder laid down in Order 21 Rule 15 CPC. Therefore, keeping in view the aforesaid provisions, it is clarified that possession of the disputed property received by the respondent No.2 shall be deemed to have been taken on behalf of all the Legal Representatives of the decree holder including the petitioners herein, and they will have the constructive possession over the disputed property carrying the same right, title and interest in the disputed property which the respondent No.2 has with regard to the disputed property. 16. With the above observations, the instant writ petition stands disposed of.