Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 860 (HP)

Balram v. Gurdei

2019-07-04

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. 1. By way of this petition, petitioner has challenged order dated 24.04.2019, passed by the Court of learned Civil Judge, Bilaspur, District Bilaspur, H.P. (Executing Court), vide which objections filed by the present petitioners under Section 47 of the Civil Procedure Code to the Execution Petition filed by the respondents herein, stand rejected. 2. Brief facts necessary for adjudication of the present petition are that respondents herein filed a suit for declaration against the present petitioners, i.e. Civil Suit No. 86-1 of 2007, titled as Smt. Gurdei and Another vs. Sh. Bal Ram and Others, Whether reporters of the local papers may be allowed to see the judgment which stood decreed by the Court of learned Civil Judge (Jr. Divn.) Bilaspur, vide judgment and decree dated 30.12.2015 in the following terms:- "In the light of my findings on above issues, the suit of the plaintiffs is hereby decreed and the plaintiffs are hereby declared entitled to 1/2 share with the defendants in the baridar rights of their common ancestor late Sh. Jodhu in the offerings of Gugga Ji temple situated at village Bhater Upperli, Tehsil Sadar, Distt. Bilaspur, H.P. Defendants are hereby restrained from interfering with the established rights of the plaintiffs to the extent of 1/2 share with them in the offerings of the Gugga Ji temple. No order as to costs. Decree sheet be prepared accordingly. The file after due completion be consigned to the record room." 3. Learned Counsel for the petitioners has fairly submitted that judgment and decree so passed by the learned trial Court has attained finality because the first appeal as also the second appeal filed against the said judgment and decree has been dismissed, so also the review petition filed against the judgment passed by this Court in Regular Second Appeal. He has further fairly submitted that a Special Leave Petition filed by the present petitioners against the judgment and decree passed by this Court in the Regular Second Appeal was also dismissed in limine by the Hon'ble Supreme Court. 4. It appears from the record that as the decree holders were aggrieved by the factum of the judgment and decree not being abided by the judgment debtors (i.e. present petitioners), they filed a Execution Petition. 4. It appears from the record that as the decree holders were aggrieved by the factum of the judgment and decree not being abided by the judgment debtors (i.e. present petitioners), they filed a Execution Petition. Objections were filed against the same inter-alia on the ground that the decree was without jurisdiction and was a result of fraud and therefore, the same was not executable by the learned Executing Court. 5. Said objections stand rejected vide impugned order by the learned Executing Court inter-alia by holding that a perusal of the objections demonstrated that they did not fulfill the essentials as mentioned under Section 47 of the Code. Learned Executing Court also held that the grounds taken in the Objections that the Civil Court had no jurisdiction to pass the decree could not be gone into while deciding said objections because the Executing Court had no jurisdiction to go into the correctness or validity of these findings which stood returned by the Civil Court as the same would amount to judicial impropriety and further amount to commenting upon the findings returned by higher Courts or criticizing their findings. Accordingly, it dismissed the Objections. 6. Feeling aggrieved, the petitioners have filed the present petition. 7. Learned Counsel for the petitioners has argued that the impugned order is not sustainable in law as learned Executing Court has erred in not appreciating that as the judgment and decree, execution of which was being sought by the respondents were a result of fraud and thus was a nullity, therefore the same were not executable and further learned Trial Court was having no jurisdiction to entertain and decide the suit. 8. No other point was urged. 9. Mr. Romesh Verma, learned Counsel for the respondents has argued that once the judgment and decree passed by the learned Trial Court has attained finality, the petitioners cannot rake up the old story of judgment and decree being bad as the same were purportedly obtained by playing fraud upon the Court. He has argued that the judgment and decree passed by the learned Trial Court were unsuccessfully assailed by the present petitioners up to Hon'ble Supreme Court and filing of the Objections against the Execution Petition as also filing of this petition is nothing but abuse of the process of law as the petitioners want to delay the execution of the judgment and decree by prolonging the litigation. 10. Having heard learned Counsel for the parties and having perused the impugned order as also other documents appended with the petition, in my considered view, there is no merit in the present petition. It is not in dispute that the execution petition filed by the respondents is for execution of judgment and decree passed by the Court of learned Civil Judge (Jr. Divn.) Bilaspur, in Civil Suit No. 86/1 of 2007, dated 30.12.2015, wherein learned trial Court inter-alia had passed a decree restraining the present petitioners from interfering with the established rights of the plaintiffs, i.e. present respondents to the extent of half share with them in the offerings of the Gugga Ji temple. The judgment and decree so passed by the learned trial Court has attend finality, as has been discussed in detail in above paragraphs of the judgment. 11. The contention of learned Counsel for the petitioners that the impugned order is not sustainable as learned Executing Court has erred in not appreciating that above-mentioned judgment and decree were not executable as the same has been passed by the learned trial Court without jurisdiction and were vitiated by fraud is without any merit. In my considered view, said issues could not have been gone into by the learned Executing Court and findings returned by the learned Executing Court while dismissing the objections that the learned Executing Court could not be asked to go behind the decree are correct findings. Whether or not, the judgment and decree passed by the Civil Court was bad for want of jurisdiction or was a result of fraud, was a point to be agitated by the Judgment Debtors in exercise of powers of appeal conferred upon them under the provisions of Civil Procedure Code. The factum of the judgment debtors having availed all the appeal opportunities available to them under the provisions of the Civil Procedure Code lead to the conclusion that presumably they raised the issue of jurisdiction and fraud also before the learned Appellate Courts but their pleas did not find favour with the learned Appellate Courts, or said pleas were never taken by the judgment debtors in appeal. 12. Be that as it may, the petitioners cannot be allowed to raise these issues in the objections filed to the proceedings initiated for execution of the judgment and decree so passed by the learned trial Court. 12. Be that as it may, the petitioners cannot be allowed to raise these issues in the objections filed to the proceedings initiated for execution of the judgment and decree so passed by the learned trial Court. This is exactly what has been held by the learned Executing Court while dismissing the objections filed by the petitioners to the Execution Petition seeking implementation of the judgment and decree. Learned Executing Court after discussing the scope and parameters of Section 47 of the Civil Procedure Code has correctly held that neither the objections were within the framework of Section 47 of the Code nor judgment debtors could be allowed to stall the execution of the judgment and decree passed by the Civil Court. This Court concurs with the findings so returned by the learned Executing Court and accordingly, as this Court does not finds any merit in the present petition, the same is therefore dismissed. 13. The petition stands disposed of in above terms, so also pending miscellaneous applications, if any.