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2023 DIGILAW 445 (JK)

Ghulam Nabi Kuchay v. Hilal Ahmad Kuchay

2023-08-25

SANJAY DHAR

body2023
JUDGMENT : 1) The petitioners have called into question order dated 06.05.2023 passed by learned Civil Judge (Junior Division), Pulwama (hereinafter referred to as “the Executing Court”), whereby warrant of possession in respect of land measuring 12 kanals and 09 marlas situated at Lethpora Tehsil Pampore, has been issued against the petitioners in an execution petition filed by the respondents seeking execution of decree dated 15.04.1993. 2) It appears that the predecessor-in-interest of the respondents had filed a suit for declaration and possession before the court below seeking a declaration that the plaintiffs are owners of 1/9th share of land measuring 230 kanals and 01 marla along with trees standing thereon situated at Lethpora Tehsil Pampore. A further declaration that the decree dated 05.09.1966 passed by learned Munsiff, Pulwama, in the case titled Nabi Kuchay & others Vs. Mohmad Kuchay & others, is null and void, ineffective and inoperative against the plaintiffs, with a decree of possession to the extent of share of the plaintiffs that was in possession of the defendants, was also sought. 3) On 29.12.1986, a compromise was arrived at between the parties and in support of memo of compromise, statements of the parties were also recorded. It appears that on the day when the compromise was arrived at between the parties, defendant No.1 in the suit, who happened to be the predecessor-in-interest of the petitioners herein, approached the court below stating that he had withdrawn his power of attorney in favour of his advocate, as such, the compromise entered is not acceptable to him. The Court considered the matter and ordered an enquiry into the question whether the compromise had been properly arrived at between the parties. After holding such enquiry, the court below decreed the suit in terms of the compromise vide decree dated 15.04.1993. 4) It seems that the defendants/the predecessors-in-interest of the petitioners herein filed an application under Order 9 Rule 13 of CPC for setting aside the decree but the same was dismissed by the court on 26.11.1996. The said order was assailed in appeal but without any success. The matter was taken to High Court by way of a revision petition and this Court vide order dated 11.09.2001 read with order dated 24.07.2007, directed learned Sub Judge, Pulwama to decide the application of defendants under Oder 9 Rule 13 of CPC after affording opportunity to the parties to lead evidence. The matter was taken to High Court by way of a revision petition and this Court vide order dated 11.09.2001 read with order dated 24.07.2007, directed learned Sub Judge, Pulwama to decide the application of defendants under Oder 9 Rule 13 of CPC after affording opportunity to the parties to lead evidence. The learned Sub Judge, after recording evidence, dismissed the application of the defendants seeking setting aside of the decree dated 15.04.1993, this was done by the learned Sub-Judge vide his order dated 20.10.2018. 5) The petitioners claim that order dated 20.10.2018 passed by the learned Sub Judge, Pulwama, is subject matter of appeal before the Principal District Judge, Pulwama, which fact is not being disputed by the respondents. 6) In the meantime, the respondents/decree holders filed an application before the learned Executing Court seeking execution of decree dated 15.04.1993. The petitioners/judgment debtors objected to the execution of the decree on the grounds that the same is based upon a fraudulent compromise; that the same is subject matter of challenge before the learned Principal District Judge, Pulwama and that the decree holders were never in possession of the suit property. 7) The learned Executing Court, after hearing the parties, passed the impugned order dated 06.05.2023, whereby warrant of possession with respect to land measuring 12 kanals 09 marlas situated at Lethpora Tehsil Pampore has been issued against the petitioners/judgment debtors. It is this order which is under challenge in the present petition. 8) The petitioners have contended that the decree sought to the executed vide the impugned order is a fraudulent decree based upon a compromise that was withdrawn by the predecessor-in-interest of the petitioners. It has been further contended that the decree sought to be executed is under challenge before the Court of learned Principal District Judge, Pulwama, and lastly it has been contended that since no decree of possession was passed in favour of the respondents/decree holders, as such, it was not open to the learned Executing Court to take recourse to the provisions under Order 21 Rule 35 of CPC while issuing the warrant of possession against the petitioners. 9) I have heard learned counsel for the parties and perused the record of the case including the record of the main suit that was summoned from the trial court. 9) I have heard learned counsel for the parties and perused the record of the case including the record of the main suit that was summoned from the trial court. 10) So far as the contention of learned counsel for the petitioners that the decree is fraudulent in nature, inasmuch as the predecessor-in-interest of the petitioners had withdrawn the authority of the counsel who entered into compromise on his behalf, is concerned, the same is without any merit for the reason that this aspect of the matter has been examined by the trial court before passing the decree, after holding an enquiry in this regard. The petitioners have lost challenge to the said decree before the trial court as well as before the Appellant Court. Thereafter this Court in revision petition remanded the matter to the trial court for deciding the matter afresh after recording the evidence. Even after recording evidence, the trial court has repelled the challenge of the petitioners. The judgment of the trial court is under challenge before the learned District Judge, Pulwama, but as on date, admittedly, the judgment/decree has not been stayed by any court whatsoever. Mere filing of the appeal does not debar the Executing Court from executing the decree. Unless there is an order passed by the superior court staying the operation of the decree, the Executing Court would be well within its jurisdiction to take all steps in connection with execution of the decree. The argument of learned counsel for the petitioners is, therefore, without any substance. 11) The main issue on which much thrust has been laid by learned counsel for the petitioners is that the decree passed by the trial court is not one for possession of the property, as such, the provisions contained in Order 21 Rule 35 of the CPC are not applicable to the facts of the instant case. It is contended that it was not open to the learned Executing Court to take recourse to said provisions. In support of his contention, learned counsel for the petitioners has placed heavy reliance upon the Full Bench judgment of Delhi High Court in the case of Sarup Singh vs. Daryodhan Singh, AIR 1972 Delhi 142. It is contended that it was not open to the learned Executing Court to take recourse to said provisions. In support of his contention, learned counsel for the petitioners has placed heavy reliance upon the Full Bench judgment of Delhi High Court in the case of Sarup Singh vs. Daryodhan Singh, AIR 1972 Delhi 142. 12) In order to appreciate the merits of the contention raised by learned counsel for the petitioners, it would be apt to notice the nature of reliefs sought by the decree holders in the suit, the contents of the compromise deed as also the contents of the decree dated 15.04.1993 sought to be executed. 13) A perusal of the plaint reveals that the respondents/decree holders had sought a declaration against the predecessor-in-interest of the petitioners that they are owners to the extent of 1/9th share in the land measuring 230 kanals 01 marla in Khewat No.77 situated at Lethpora Tehsil Pampore along with trees standing thereon. A consequential relief that decree dated 15.04.1993 passed by learned Munsiff, Pulwama, in case titled Nabi Kuchay and others vs. Mohmad Kuchay and others in respect of the aforesaid land is illegal and inoperative as against the rights of the plaintiffs, was also sought. The plaintiffs/decree holders had also sought a decree of possession to the extent of their share that was in possession of the defendants/judgment debtors. 14) Vide compromise deed, which has become basis for the decree sought to be executed, it was agreed by the parties to the suit that the plaintiffs No.1 to 3 are entitled to ownership and possession of land measuring 12 kanals 09 marlas in Khasra Nos.1920-min, 1949, 2433-min, 2436, 2050 and 2218-min situated at Lethpora Tehsil Pampore in equal shares whereas for rest portion of the suit land, the defendants shall remain in ownership and possession as existed on spot. It was also agreed that the parties shall ensure that the decree is executed. 15) In terms of the aforesaid compromise, decree dated 15.04.1993 has been passed by the trial court whereby it has been declared that the plaintiffs/decree holders shall be entitled to ownership and possession of land measuring 12 kanals and 09 marlas in the aforesaid Khasra nos. and that the defendants/judgment debtors shall be owners in possession in respect of rest of the land. and that the defendants/judgment debtors shall be owners in possession in respect of rest of the land. A further decree of prohibitory injunction has also been passed by the Civil Court whereby the defendants have been asked not interfere in possession of the plaintiffs/decree holders over the aforesaid land. 16) From a perusal of the contents of the plaint, it is clear that the plaintiffs/decree holders had also sought a decree of possession against the defendants/judgment debtors. In fact, in para (3) of the plaint, the plaintiffs/decree holders have stated that the out of the ancestral property measuring 230 kanals and 01 marlas, the plaintiffs/decree holders are entitled to 1/9th share, meaning thereby that they are entitled to more than 25 kanals of land. In para (5) of the plaint, it has been claimed by the plaintiffs that though they are entitled to 1/9th share of the joint holding measuring 230 kanals and 01 marlas, yet they are only in possession of 12 kanals and 09 marlas falling under Khasra nos. which find mention in the decree dated 15.04.1993. The plaintiffs have gone on to claim that the defendants have forcibly occupied the land which is in excess of their share and that they are required to be dispossessed from the same so that the plaintiffs would get 1/9th of the joint holding. 17) When we have a look at the compromise arrived at between the parties, it becomes clear that the plaintiffs instead of persisting with their claim of 1/9th share of total joint holding measuring 230 kanals and 01 marla have settled for 12 kanals and 09 marlas of land which, as per their own showing, was already in their possession, meaning thereby that the plaintiffs gave up their right to claim land which, according to them, was in possession of the defendants in excess of their due share. The decree dated 15.04.1993 is, therefore, required to be interpreted in the light of the aforesaid facts. 18) If we have a look at the execution application filed by the plaintiffs/decree holders before the learned Executing Court, they have simply stated that the decree dated 15.04.1993 is required to be executed. The decree dated 15.04.1993 is, therefore, required to be interpreted in the light of the aforesaid facts. 18) If we have a look at the execution application filed by the plaintiffs/decree holders before the learned Executing Court, they have simply stated that the decree dated 15.04.1993 is required to be executed. It is not clear as to whether the respondents/decree holders were dispossessed from the land measuring 12 kanals 09 marlas during pendency of the suit or after passing of the decree because, as per the own case of the respondents/decree holders before the trial court, at the time of filing of the suit, they were in possession of 12 kanals and 09 marlas of land and because of this, the trial court while passing the decree had only held the plaintiffs/decree holders entitled to ownership and possession of land measuring 12 kanals 09 marlas and the petitioners/judgment debtors were restrained from interfering in their possession over the said land. No decree of possession was passed by the trial court by virtue of the compromise decree. 19) In view of the fact that the trial court had not passed a decree for possession in favour of the decree holder, the Executing Court could not have taken resort to the provisions of Rule 35 of Order 21 of the CPC, which is meant for execution of a decree for possession relating to any immovable property. As per the compromise decree passed in the instant case, it has been declared that the plaintiffs/decree holders are entitled to ownership and possession of land measuring 12 kanals 09 marlas which was already in their possession. The compromise decree further restrained the defendants/judgment debtors from interfering in the said land. 20) If the defendants/judgment debtors were threatening to interfere in the possession of the plaintiffs/decree holders in the aforesaid land or if they had encroached upon the said land, the proper course for the learned Executing Court was to take resort to the provisions contained in Rule 32 of Order 21 of the CPC and not to the provisions of Rule 35 of Order 21 of the CPC. This is so because the compromise decree sought to be executed was not the one for possession but it was a decree for declaration of rights of the parties with a decree for injunction. This is so because the compromise decree sought to be executed was not the one for possession but it was a decree for declaration of rights of the parties with a decree for injunction. 21) I am supported in my aforesaid view by the judgment of this Court in the case of Hajra vs. Ab. Majeed Matoo & Ors. AIR 1988 J&K 84. In the said case, the Court has held that decree for injunction of any kind cannot be executed in any manner other than provided under Order 21 Rule 32 CPC. It has been further held that it cannot be executed in the manner which is provided under Order 21 Rule 35 or Rule 36 of the CPC. The Court went on to observe that if anything is required to be done by law or by any rule in a particular manner, that thing has to be done in that manner. Thus, the Court held that a decree holder cannot ask the court to execute the decree under Order 21 Rule 35 or Rule 36 of the CPC which does not relate to the execution of decree for possession and joint possession respectively and that it has to be executed in the manner which is prescribed by Order 21 Rule 32 and in no other manner. 22) In view of the aforesaid position of law, the learned Executing Court has fallen into an error in the instant case by taking resort to the provisions contained in Order 21 Rule 35 of CPC and issuing a warrant of possession against the petitioners. The impugned order is, therefore, not sustainable in law and deserves to be set aside because the same has been passed by the Executing Court by exercise of jurisdiction in an illegal manner. 23) For the foregoing reasons, the petition is allowed and the impugned order passed by the learned Executing Court is set aside. The learned Executing Court shall take all necessary steps for execution of the decree in accordance with the provisions contained in Order 21 Rule 32 of the Code of Civil Procedure. 24) A copy of this order along with record of the trial court be sent back forthwith.