Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 683 (HP)

Master Jagmohan (Minor) v. Amar Chand

2019-05-31

JYOTSNA REWAL DUA

body2019
JUDGMENT : Jyotsna Rewal Dua, J. Instant petition has been preferred against the order dated 2.8.2018, passed by the learned Senior Civil Judge, Kullu, H.P., dismissing Objection Petition No. 1/2015, filed by the petitioners in Execution Petition No. 68-X/2013. 2. The factual matrix of case :- 2 (i) Suit was filed by the respondent seeking specific performance of the agreement to sell dated 25.08.1998. The suit was decreed vide judgment dated 20.5.2004 (Civil Suit No. 207 of 1999/62/2003). First appeal filed by the Judgment Debtor was dismissed by the learned District Judge, Kullu. Second appeal filed by the Judgment Debtor (RSA No.1 of 2005) was dismissed by this Court, vide judgment, dated 22.03.2013. Special Leave Petition bearing No. 24773/2013 filed by the Judgment Debtor was also dismissed by the Hon'ble Apex Court, vide order dated 16.8.2013. 2(ii) Decree holder, thereafter filed execution petition on 02.12.2013. Objections were preferred by the Judgment Debtor and thereafter by petitioners (wife and children as his successors) to the effect that (a) suit land was joint Hindu ancestral property and that Judgment Debtor had no right to execute the agreement in respect of same; (b) petitioners became aware of previous litigation only after dismissal of Special Leave Petition, whereafter, they instituted an independent Civil Suit (No. 76 of 2014) against the Judgment Debtor and Decree Holder. In t,his suit presently pending adjudication, before the learned Civil Judge Senior Division, Lahul and Spiti at Kullu H.P., petitioners have challenged the judgment for decree dated 20.05.2004, have also sought declaration that they have rights over the suit land and that Judgment Debtor had not right to transfer the same. 2(iii) Replies to the objections were filed by the respondent-Decree Holder, denying that the suit land was joint/ancestral land. It was pleaded that Judgment Debtor had sold the suit land in favor of Decree Holder under the agreement dated 25.08.1998 and that the concurrent judgments right upto Hon'ble Apex Court had been passed affirming the decree of the suit for specific performance of this agreement dated 25.08.1998. The subsequent suit filed by the wife of the Judgment Debtor against the Judgment Debtor and Decree holder was asserted to have been filed in connivance with the Judgment Debtor. 3. The subsequent suit filed by the wife of the Judgment Debtor against the Judgment Debtor and Decree holder was asserted to have been filed in connivance with the Judgment Debtor. 3. Learned Executing Court observed in the impugned order that admittedly no document has been brought on record by the petitioners to show that the suit land was joint Hindu ancestral property. It was also observed that since subsequent to the dismissal of the Special Leave Petition by the Hon'ble Apex Court, petitioners have instituted a separate civil suit for determining their alleged rights over the suit land, therefore, their rights, title or interest, if any, shall be decided in the said Civil Suit. The objections were dismissed. Nine months after the dismissal of objection vide impugned order, present petition has been instituted, challenging the same. 4. I have heard learned counsel for the petitioners and gone through the appended record. Learned counsel for the petitioners argued that the petitioners were not aware of the earlier litigation and the successive appeals filed by Judgment Debtor (Father of Petitioners No. 1 & 2 and Husband of Petitioner No.3). Further that they became aware of the decision only after the Special Leave Petition No. 24773 of 2013 was dismissed on 16.08.2013. It is only thereafter they filed their own separate Civil Suit (No. 76 of 2014). It was further asserted that learned Executing Court should have framed issues in their objection petition and should have given them adequate opportunity to lead evidence for proving their contentions that the suit land was joint Hindu Ancestral Property and that Judgment Debtor was not competent to execute agreement dated 25.08.1998. The order of the learned Executing Court in summarily dismissing the objection was erroneous and therefore is liable to be interfered with. 5. It is settled law that the Executing Court cannot go behind the decree and has to execute the decree as it stands. The Hon'ble Supreme Court in Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Others, (1970) 1 SCC 670 held as under:- "6. A Court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Rajabhai Abdul Rehman and Others, (1970) 1 SCC 670 held as under:- "6. A Court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. 7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representative on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: Where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. In Jnanendra Mohan Bhaduri and Another v. Rabindra Nath Chakravarti, the Judicial Committee held that where a decree was passed upon an award made under the provisions of the Indian Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction. 6. In case of Brakewel Automatic Components (India) Vs. P.R. Selvam Alagappan, (2017) 5 SCC 371 , it was held by Hon'ble Apex Court as under:- "20. It is no longer res integra that an executing court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardising the rights of the parties thereunder. In case of Brakewel Automatic Components (India) Vs. P.R. Selvam Alagappan, (2017) 5 SCC 371 , it was held by Hon'ble Apex Court as under:- "20. It is no longer res integra that an executing court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardising the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus unexecutable. An erroneous decree cannot be equalled with one which is a nullity. There are no intervening development as well as to render the decree unexecutable. 21. As it is, Section 47 of the Code mandates determination by an executing Court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacroscant in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof." In Paras 22 and 23 of the aforementioned judgment Hon'ble Apex Court relying upon judgments rendered in Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Others, (1970) 1 SCC 670 and in Dhurandhar Prasad Singh Vs. Jai Prakash University and others, (2001) 6 SCC 534 , held that purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness. Exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an Executing Court can allow objection to the executability of the decree, if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree unexecutable after its passing. Similar principles have been laid down by Hon'ble Apex Court in Sneh Lata Goel Vs. Similar principles have been laid down by Hon'ble Apex Court in Sneh Lata Goel Vs. Pushplata and others, 2019 3 SCC 594 that the Executing Court lacks jurisdiction to decide an objection, which does not relate to inherent lack of jurisdiction of Civil Court. 7. It is not the case of the petitioners here that the decree was passed by a Court lacking inherent jurisdiction. It also cannot be said that objections are such which are apparent on the face of the record. In fact, the objections pertain to the merits of the matter. Any decision thereupon by Executing Court would amount to reopening of the judgment and decree passed in favour of the Decree Holder, which have been concurrently upheld right till the Hon'ble Apex Court. This would have been impermissible in execution petition. Jurisdiction of Executing Court is limited and narrow. Right to raise objection does not mean that objector can re-open the matter. The jurisdiction of Executing Court cannot be equated with that of appeal or review. Therefore, no fault can be found in the impugned order, dismissing the objection petition. 8. Regarding the rights and contentions of the parties in the suit filed by the petitioners, subsequent to the dismissal of the Special Leave Petition, it will be apt to refer few paragraphs of decision of Hon'ble Supreme Court in Sneh Lata Goel Vs. Pushplata and others, 2019 3 SCC 594 :- 5. On 12th May 2014, the appellant filed proceedings for the execution of the final decree at Ranchi. On 1st January 2015, the first respondent filed an objection under Section 47 of the Code of Civil Procedure contending that the decree dated 13.6.1990, the final decree dated 5th April 1991 and the supplementary final decree dated 18th December 2013, were without jurisdiction and therefore, a nullity. On 10th March 2015, the first respondent challenged the decree dated 13th June 1990 in appeal under Section 96 CPC. The appeal is pending. 6. On 10th March 2016, the executing court dismissed the objections of the first respondent under Section 47 CPC with the following observations: "The decree holder is entitled to get the fruits of the decree and the executing cannot go behind the decree. The appeal is pending. 6. On 10th March 2016, the executing court dismissed the objections of the first respondent under Section 47 CPC with the following observations: "The decree holder is entitled to get the fruits of the decree and the executing cannot go behind the decree. When a decree is made by a court which has no inherent jurisdiction, an objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. Where the objection as to the jurisdiction of the court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at trial, which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree on the ground of jurisdiction. 25. The respondent has filed a first appeal (First Appeal No. 43 of 2015) where the issue of jurisdiction has been raised. We must clarify that the findings in the present judgment shall not affect the rights and contentions of the parties in the first appeal." Thus, while affirming order of Executing Court dismissing the objection, which did not pertain to inherent lack of jurisdiction of Court, the rights and contentions of the parties in the first appeal were protected by the Hon'ble Apex Court. Such protection was also accorded by this Court in Gulab Singh and others versus Mahender Singh and others,2019 2 HimLR 1055 (HC), a case involving some what similar factual position. 9. Learned Executing Court has rightly observed in the impugned order that right, title or interest of the objectors (petitioners), if any over the suit land shall be decided in the Civil Suit (No. 76 of 2014). Thus, dismissal of the objection petition will not come in the way of determination of right, title or interest of the petitioners over the suit land in their independent suit pending before the learned Civil Judge Senior Division, Lahul and Spiti at Kullu, H.P. Observations made in present judgment are for adjudication of present petition and shall have no bearing on Civil Suit filed by the petitioners. 10. In view of the foregoing observations, the present petition is dismissed, being devoid of any merit. Pending miscellaneous application(s), if any, also stand disposed of.