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2019 DIGILAW 428 (HP)

Gulab Singh v. Mahender Singh

2019-04-17

AJAY MOHAN GOEL

body2019
JUDGMENT Ajay Mohan Goel, J. - By way of this petition, petitioners/judgment debtors have prayed for setting aside order dated 26.9.2018 (Annexure P-6) vide which an application filed by them under Order 21 Rule 26 read with Rule 29 of the CPC for stay of execution petition stands dismissed by the learned Executing Court. 2. Brief facts necessary for adjudication of the petition are that mother of respondent-decree holder filed Civil Suit No. 2/1975 in the Court of learned Civil Judge (Senior Division), Mandi for declaration that Will dated 26.12.1973 was null and void, purportedly executed by her husband late Rottu in favour of Jeetu and Smt. Bhimi Devi and also for possession of the suit land. Said suit stood decreed on 22.1.1987. Defendants therein assailed the judgment and decree passed by learned trial Court unsuccessfully before learned first appellate Court as also before this Court by way of Regular Second Appeal. 3. Smt. Kali Devi died on 19.12.1985. The decree holder succeeded to her property after her death and after he attained the age of majority, he filed Execution proceedings for possession of the suit land. In these execution proceedings, present petitioners i.e., the JDs. Filed an application under Order 21 Rule 26 read with Rule 29 of the CPC with the prayer that the execution of the judgment be stayed till the adjudication of Civil Suit No. 66/2017 filed by them in the Court of learned Civil Judge, Court No.III, Mandi, H.P. against the decree holder. 4. Vide impugned order, the application filed by petitioners/JDs has been dismissed. 5. Learned Executing Court rejected the application filed by present petitioners by holding that after the civil suit filed by Smt. Kali Devi stood decreed, both the first appellate Court as also the High Court in Regular Second Appeal had upheld the said judgment and decree. Learned Executing Court held that in this background, execution proceedings could not be stayed on the plea of the judgment debtor that he had raised the issue of paternity of the decree holder by way of a fresh civil suit. 6. Feeling aggrieved, the petitioners have filed this petition. 7. I have heard learned counsel for the parties and have also gone through the impugned order as well as the record of the case. 8. 6. Feeling aggrieved, the petitioners have filed this petition. 7. I have heard learned counsel for the parties and have also gone through the impugned order as well as the record of the case. 8. It is a matter of record that the suit for declaration and possession filed by the predecessor-in-interest of the present respondent/decree holder stood decreed by the Court of learned Senior Sub Judge, Mandi on 22.1.1987. It is also a matter of record that appeal filed against the said judgment and decree was dismissed by learned first appellate Court. It is also a matter of record that the second appeal filed against the judgment and decree stood dismissed by this Court i.e., RSA No. 56 of 1981 titled as Jeetu and another Vs,. Smt. Kali as far back as on 19.12.1990. That being the case, learned Executing Court has rightly rejected the application filed by the petitioner for stay of execution proceedings because once the judgment and decree passed in favour of the predecessor-in- interest of present decree holder has attained finality, execution of the same cannot be stayed simply because another civil suit stands filed now by present petitioners for declaration and injunction against the respondent/decree holder. The decree holder has filed execution petition on the strength of the judgment and decree which was passed in favour of his mother, namely, Smt. Kali Devi. A perusal of the fresh suit filed by present petitioners demonstrates that in the said suit, again the issue of Will dated 26.12.1973 stands agitated which issue already stands decided in favour of Smt. Kali Devi in the previous suit. In other words, the filing of the suit apparently is a mean adopted by present petitioners to throttle the execution of the decree passed in favour of Kali Devi. 9. Be that as it may, the suit so filed has to be decided and shall be decided by learned trial Court on the basis of pleadings as also the evidence which will be led by respective parties before it, but simply on account of filing of the suit by present petitioners, the execution of the decree passed in favour of Kali Devi, cannot be stalled. It is, however, clarified that the observations which have been made by this Court in the present judgment are only for the purpose of adjudication of the present petition and shall have no bearing on the civil suit which has been filed by the petitioners which shall be decided by learned trial Court on its own merit. Accordingly, as there is no merit in the present petition, the same is dismissed. Pending miscellaneous applications, if any, also stand disposed of.