Research › Search › Judgment

Punjab High Court · body

2019 DIGILAW 2714 (PNJ)

Uma Rani v. Balwinder Singh

2019-10-01

NIRMALJIT KAUR

body2019
Judgment Ms. Nirmaljit Kaur, J. (Oral):-The present revision petition is filed under Article 227 of theConstitution of of India for setting aside the order dated 6.7.2019 passed bythe Civil Judge (Jr. Divn.) Gidderbaha, District Sri Muktsar Sahib, videwhich, the application for terminating the execution proceedings filed bythe petitioner, was dismissed. Further prayer has also been made to set asidethe order dated 15.7.2019 passed by the Civil Judge (Jr. Divn.), Gidderbaha,District Sri Muktsar Sahib, vide which, the Executing Court has issuedwarrants of possession. 2. The civil suit for specific performance was decided in favour ofrespondent No.1 way back on 3.3.2010. Thereafter the appeal against thesaid order too was dismissed vide judgment and order dated 31.1.2012. RSAagainst the same was dismissed by this Court on 7.3.2012. SLP too wasdismissed on 15.3.2013 by Hon’ble the Supreme Court. Thereafter,respondent No.1 filed execution petition. During the pendency of the saidexecution petition, the petitioner filed an application that power of attorneydated 7.6.2010 was signed by the decree holder-respondent No.1 and norsigned by the Advocate Pleader and that no counsel had accepted the powerof attorney of the decree holder. As such, the same cannot be accepted.Furhter, Shri Ravinder Pal Singh Advocate is appearing on behalf ofrespondent No.1 without filing of any power of attorney. The saidapplication was dismissed, vide impugned order dated 6.7.2019 byobserving that, the decree holder had himself suffered a statement before theCourt that he had engaged Shri Ravinder Pal Singh, Advocate as his counselsince the filing of the suit and the execution is continuation of theproceedings. 3. Learned counsel for the petitioner while praying for settingaside the said orders, has placed reliance upon the judgments of Hon’ble theSupreme Court rendered in the case of Karnataka Housing Board vs. K.A. Nagamani, 2019 AIR (SC) 2290, judgment of this Court in the case of Pat Ram, etc. vs. Ekam Singh, etc. 1971 CurLJ 294 and judgment of RajasthanHigh Court in the case of Ramkaran vs. Shrikishan and others, 1976 AIR(Raj) 130 to contend that the execution proceedings are not the continuationof the original suit and are separate and independent proceedings. 4. vs. Ekam Singh, etc. 1971 CurLJ 294 and judgment of RajasthanHigh Court in the case of Ramkaran vs. Shrikishan and others, 1976 AIR(Raj) 130 to contend that the execution proceedings are not the continuationof the original suit and are separate and independent proceedings. 4. Upon notice, learned counsel appearing for respondent No.1has brought to the notice of this Court that vide amendment for State of Punjab, in Order 3 Rule 4, sub Rule 3 of CPC has been substituted for thepurpose of Sub Rule 2 CPC providing that the execution of any decree ororder in the suit is deemed to be proceedings in the suit. The Order 3 Rule 4,Sub Rule 3 and the said State amendment is reproduced below:- “Order 3 Rule 4: Appointment of Pleader-- (1) No pleader shallact for any person in any Court, unless he has been appointedfor the purpose by such person by a document in writing signedby such person or by his recognised agent or by some otherperson duly authorised by or under a power-of-attorney tomake such appointment. (2) Every such appointment shall be (filed in Court and shall,for the purposes of sub-rule (1), be) deemed to be in force untildetermined with the leave of the Court by a writing signed bythe client or the pleader, as the case may be, and filed in Court,or until the client or the pleader dies, or until all proceedings inthe suit are ended so far as regards theclient. .............................. .............................. [(3) Nothing in sub-rule (2) shall be construed- (a) as extending, as between the pleader and his client, theduration for which the pleader is engaged, or (b) as authorising service on the pleader of any notice ordocument issued by any Court other than the Court for whichthe pleader was engaged, except where such service wasexpressly agreed to by the client in the document referred to insub-rule (1)] High Court Amendment (Punjab) (3)For the purpose of sub-rule (2), (i) an application or a proceeding for transfer under sections22, 24 or 25 of this Code, (ii) an application under rule 4 orrule 9 or rule 13 of Order 9 of this Code; (iii) an applicationunder rule 4 of Order 38 of this Code; (iv) an application forreview of judgment; (v) a reference arising from or out of thesuit; (vi) an application for amendment of the decree or orderor the record in the suit or an appeal, reference or revisionarising from or out of the suit; (vii) an application for the execution of any decree or order in the suit; (viii) anapplication for restitution under section 144 or section 151 ofthis Code; (ix) an application under Section 151 of this Code, (x) an application under Section 152 of this Code; (xi) anyappeal (including an appeal under the Letters Patent of theHigh Court) or revision application from any decree or orderin the suit or an appeal arising from or out of the suit; (xii) anyapplication relating to, or incidental to or arising from or outof such appeal or revision or a reference arising from or out ofthe suit (including an application for leave to appeal under theLetters Patent of the High Court or for leave to appeal to theSupreme Court), (xiii) any application for directing orproceedings for prosecution under Chapter 35 of the Code ofCriminal Procedure, 1898, relating to the suit or any of theproceedings mentioned herein-before or an appeal or revisionarising from and out of any order passed in such application orproceeding; (xiv) any application or act for the purposes ofobtaining copies of documents or the return of documentsproduced or filed in the suit or in any of the proceedingsmentioned herein-before; (xv) any application for thewithdrawal or for obtaining the refund to payment of or out ofthe monies paid or deposited into the Court in connection withthe suit or any of the proceedings mentioned hereinbefore(including withdrawal, refund or payment of or out of themonies deposited as security for costs or for covering thecosts of the preparation and printing of the Transcript Recordof the appeal to the Supreme court); (xvi) any application forexpunging any remarks, observation on the record of or madein the judgment in the suit or any appeal, revision, referenceor review arising from or out of the suit; (xvii) any applicationfor certificate in regard to the substitution of heirs in appeal tothe Supreme Court arising from the suit and, (xviii) anyapplication under Rule 15 of Order 45 of the Code shall be deemed to be proceedings in the suit” 5. Therefore, the argument of learned counsel for the petitionerthat the execution proceedings are not the continuation of the original suitwill not help in the facts of the present case in view of the aboveamendment for the State of Punjab vide which the execution is deemed to bethe proceedings under the suit. 6. At this stage, learned counsel for the petitioners contended thatsimilar amendments also existed for State of Karnatka but in spite of thesame, the Hon’ble the Supreme Court in the case of Karnataka Housing Board (supra) has held that the execution proceedings are not continuationof the original suit. The said argument does not help the petitioner. There isno dispute with the law laid down by Hon’ble the Supreme Court in the caseof Karnataka Housing Board (supra), but the same does not help thepetitioner because in the said case, the State amendment in the State ofKarnatka was not brought to the notice of the Hon’ble Supreme Court. 7. Faced with the above situation, learned counsel for thepetitioners went on to argue that the power of attorney, which was placed onrecord in the civil suit did not carry the authorization for filing the executionpetition. The said argument will not come to the rescue of the petitioner inview of the above amendment and in any case, as already noticed by theCourt below, the decree holder has himself suffered a statement that he hasengaged Shri Ravinder Pal Singh, Advocate as his counsel since the veryfiling of the suit and that he was still his counsel. 8. Reliance is also placed on the judgments of Hon’ble theSupreme Court in the cases of Man Kaur (dead) by LRs vs. Hartar Singh Sangha, 2011(1) RCR (Civil) 189 and S. Kesari Hanuman Goud vs. Anjum Jehan and others, 2014(2) RCR (Civil) 52. The same too do not help thepetitioner as each case depends upon its own facts. In the said cases, there isnothing to show that client or litigant himself had stepped into the witnessbox to confirm that the concerned Advocate was still their counsel and wasengaged by them. In the present case, the statement of decree holder issufficient to prove and evidence of the fact that Shri Ravinder Pal Singh,Advocate was the counsel of the decree holder and had authorization to filethe execution petition. 9. In view of the above, the present revision petition is dismissedbeing devoid of merits.