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2021 DIGILAW 392 (HP)

Sukh Ram v. Surtu Devi

2021-07-12

AJAY MOHAN GOEL

body2021
JUDGMENT Ajay Mohan Goel, J. - By way of this petition filed under Section 115 of the Code of Civil Procedure, the petitioner has prayed for the following relief:- "It is, therefore, prayed that the petition may kindly be allowed in view of the submission made here in above and order dated 13.06.2019 (Annexure P-4) passed in Ex. Petition No. 29/2004 titled as Surtu Devi vs. Sukh Ram may be ordered to be set aside and quashed in the facts and circumstances of the case." 2. Brief facts necessary for the adjudication of the present petition are as under:- A decree for possession of land bearing Khasra No. 805, measuring 3-12-17 bighas and Khasra No. 899, measuring 2-1-2 bighas, situated in Mohal Darat Bagla, Tehsil Jogindernagar, District Mandi, H.P. has been passed in favour of the respondent/Decree Holder by the Court of learned Civil Judge (Jr. Divn.), Jogindernagar, on 30.11.2012, which judgment has attained finality as the appeal preferred against the same by the defendant stood dismissed. These facts are not in dispute. Thereafter an execution petition was filed by present respondent/Decree Holder for the execution of the decree. Vide Annexure P-2, Objections were filed against the same by the present petitioner/Judgment debtor, inter alia taking the stand that after the passing of the judgment, the matter stood compromised between the Decree Holder and the Judgment Debtor and Decree Holder had held out that the decree shall not be executed and that the suit land shall be partitioned. In the reply, which was filed to the Objections by the Decree Holder, it was specifically denied that any compromise was ever entered into between the parties. Record demonstrates that thereafter the matter was listed on several dates before the learned Executing Court for consideration. 3. On 07.03.2017, the objections were heard and the case was ordered to be listed for orders on objections on 29.03.2017. However, on 29.03.2017, no orders were pronounced on the objections and rather the learned Executing Court passed by the following order: "The case is listed for order on objection. However, issues are not yet framed. Now to come up for settlement of issues on 20.05.2017." 4. However, on 29.03.2017, no orders were pronounced on the objections and rather the learned Executing Court passed by the following order: "The case is listed for order on objection. However, issues are not yet framed. Now to come up for settlement of issues on 20.05.2017." 4. The grievance of the petitioner is that despite a specific express order having been passed by the Court that Issues were required to be framed, on 07.05.2019, learned Executing Court, all of a sudden, passed the following effect:- "The case was inadvertently listed for determination of points, however, there is no need of determination of point. Let case be listed for consideration on 30.05.2019." 5. Thereafter, impugned order dated 13.06.2019 has been passed vide which the objections filed by the petitioner have been dismissed and warrant of possession has been ordered to be issued. 6. Mr. B.S. Chauhan, learned Senior Counsel appearing for the petitioner has argued that once learned Executing Court, in its wisdom, on 29.03.2017, had ordered the framing of Issues, then, the act of the learned Executing Court of unilaterally and suo motu reviewing the same vide order dated 07.05.2019 is not sustainable in law because no reasons stand mentioned by the learned Executing Court in its order dated 07.05.2019 as to why there was a change in heart and as to why learned Executing Court was of the view that the case was inadvertently listed for determination of points on previous occasion. Learned Senior Counsel has argued that once there was an order for framing of Issues, then, learned Executing Court was bound to have had framed the Issues and after calling upon the parties to record their evidence in support of their respective contentions qua the Issues, appropriate order should have been passed by the learned Executing Court on the Objections. Failure on the part of the learned Executing Court to do so, has resulted in grave injustice to the petitioner, and in this background, learned Senior Counsel submits that the impugned order be set aside and the case be remanded back to the learned Executing Court for adjudication afresh after framing the Issues. 7. Opposing the petition, Mr. Failure on the part of the learned Executing Court to do so, has resulted in grave injustice to the petitioner, and in this background, learned Senior Counsel submits that the impugned order be set aside and the case be remanded back to the learned Executing Court for adjudication afresh after framing the Issues. 7. Opposing the petition, Mr. Praveen Chandel, learned Counsel for the respondent has submitted that there is no infirmity in the order passed by learned Executing Court on 07.05.2019, vide which, it ordered that case was inadvertently listed for determination of points because in the absence of any compromise having been entered into between the parties, there was no need to frame any Issue. He further submitted that on 17.05.2019 when the order was passed by learned Executing Court, no objections were raised qua the said order by the judgment debtor nor any protest was made thereafter and it is only because the main Objections have been decided against the present petitioner that this petition has been filed to defeat the ends of justice. On these bases, he submitted that the present petition be dismissed. 8. I have heard learned Counsel appearing for the parties and also gone through the impugned orders as well as the documents appended with the petition. 9. Under the provisions of Section 115 of the Code of Civil Procedure, the High Court interferes with the orders passed by the learned Courts below on the happening of any of the following three things: (1) If the impugned order has been passed by the Court by exercising jurisdiction not vested in it; (2) if the impugned order has been passed by the Court by not exercising jurisdiction vested in it; and/or (3) if the impugned order has been passed by the Court below by exercising jurisdiction vested in it with material irregularity. In the considered view of the this Court, this case falls in the third category. In the considered view of the this Court, this case falls in the third category. No doubt, there was no bar for the learned Executing Court to have decided the Objections to the execution, either by framing the Issues or without framing the Issues, but once order stood passed by the learned Executing Court that issues are required to be framed for the purpose of determination of the Objections, then the act of learned Executing Court of arbitrarily recalling said order vide order dated 07.05.2019, which is completely a non-speaking order, as it does not reflects as to how learned Executing Court came to the conclusion that determination of Issues was not needed, is not sustainable in law. Here it is not a case where the earlier order passed by learned Executing Court ordering that Issues be framed was challenged by the Decree Holder either before the superior Court of law or before that Court itself, seeking recall of said order. Record also does not demonstrates that before passing order on 07.05.2019, any opportunity was given by the learned Executing Court to the Judgment Debtor as to why the previous orders be not recalled. That being the case, the jurisdiction vested in the learned Executing Court has been exercised by it with material irregularity for the reason that the Court could not have arbitrarily departed from its earlier orders in the absence of there being any challenge to the same. This renders order dated 07.05.2019 passed by learned Executing Court as bad in law. Resultantly, impugned order dated 13.06.2019 is also not sustainable in law because minimum the law required was that once learned Executing Court had earlier ordered that Issues were required to be framed to decide the Objections, then, it was incumbent upon the learned Executing Court to have had framed the Issues and after giving opportunity to the parties to lead their respective evidence decided the same as per law. 10. In view of the discussion held hereinabove, this petition succeeds and order dated 13.06.2019 is quashed and set aside. 10. In view of the discussion held hereinabove, this petition succeeds and order dated 13.06.2019 is quashed and set aside. It is further held that order dated 07.05.2019, vide which, the learned Executing Court held that there was no need of determination of any point, is also quashed and set aside and the matter is remanded back to the learned Executing Court with the direction that the Issues be framed in terms of earlier order dated 29.03.2017, and thereafter, the Objections be decided after giving reasonable opportunity to both the parties to lead their respective evidence. Taking into consideration the fact that the Execution petition has been filed for execution of a decree passed in the year 2012, it is ordered that Issues shall positively be framed by the learned Executing Court in the execution petition on the Objections filed by the Judgment Debtor within two weeks from today and as from the date of framing of Issues, only two opportunities each shall be given to the parties to lead their respective evidence on self responsibility with regard to their respective contentions and the Issues so framed, and thereafter, appropriate orders on the Objections be passed on or before 30.11.2021. 11. It is clarified that this Court has not expressed any view with regard to the merit of the case and the execution petition shall be taken to its logical conclusion by the learned Executing Court uninfluenced by any observation made by this Court while disposing of this petition. 12. With these observations, the petition stands disposed of. Pending miscellaneous application(s), if any, also stand disposed of accordingly.