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2025 DIGILAW 1307 (ALL)

Ghanshyam v. Tulsi

2025-11-13

MANISH KUMAR NIGAM

body2025
JUDGMENT : MANISH KUMAR NIGAM, J. 1. Heard Sri A.K. Shukla, learned counsel appearing for the petitioners and Sri Gautam, learned counsel for the respondents. 2. This petition has been filed challenging the order dated 27.10.2017 passed Additional Civil Judge, Court No. 3, Gorakhpur rejecting the objections filed by the judgment debtor-petitioners under Section 47 C.P.C. (registered as Misc. Case No. 80 of 1980) in execution case No. 158 of 1979 (Ghanshyam and others Vs. Lorik and others) and order dated 06.09.2023 passed by Additional District Judge, Court No. 1, Gorakhpur in Civil Revision No. 39 of 2021 rejecting the revision filed by the judgment debtor-petitioners against the order dated 27.10.2017. 3. Brief facts of the case are that Original Suit No. 149 of 1964 was instituted by the predecessor in interest of the respondents, namely, Tulsi against predecessor in interest of the petitioners, namely, Ghanshyam, Mithai and one Sanwary for the relief that defendants be directed to remove their possession over any dispute shown by letter l and n shown with red colour situated at Mauja Sonbarsa, Tappa Keotali, Pargana Haveli, District-Gorkahpur and hand over possession to the plaintiffs after demolishing their constructions shown by letter l and n . During pendency of the suit, original plaintiff Tulsi died and was substituted by his son Hansraj. Hansraj also died during pendency of the suit and was substituted by Lorik son of Hansraj, Smt. Dulari and Smt. Tapesari daughters of Tulsi. Suit No. 149 of 1964 was decreed after contest by judgment and decree dated 25.05.1965 directing the defendants to remove constructions shown at letter l and n existing on the land in the suit and also to deliver the possession over the land in suit within thirty days. Ameen map 23-Ga was made on the part of the decree. Civil Appeal No. 320 of 1965 was filed by Ghanshyam and other defendants in the suit against the judgment and decree dated 25.05.1965 which was dismissed by judgment and decree dated 03.03.1978 and the decree became final. Lorik one of the decree holders filed Execution Case No. 158 of 1979 for executing the decree dated 25.05.1965. The judgment debtor-petitioners filed objection against the execution application Paper No. 4 Ga which was registered as Misc. Case No. 80 of 1980. During pendency of the execution case, decree holders as well as judgment debtors died and were substituted by their heirs. The judgment debtor-petitioners filed objection against the execution application Paper No. 4 Ga which was registered as Misc. Case No. 80 of 1980. During pendency of the execution case, decree holders as well as judgment debtors died and were substituted by their heirs. Decree holders also filed objections against the objection filed by the judgment debtor-petitioners under Section 47 C.P.C. The executing court by judgment and order dated 27.10.2017 dismissed the objections filed by the petitioners under Section 47 C.P.C. The order dated 27.10.2017 was challenged in revision being Revision No. 39 of 2021 and the same was dismissed by the revisional court by order dated 06.09.2023. Hence the present writ petition. 4. It has been submitted by counsel for the petitioners that judgment and decree dated 25.05.1965 was a joint decree in favour of heirs of original plaintiff Tulsi. Only Lorik, one of the decree holders filed the execution petition without their being any recital in the said petition that the execution case is being filed for the benefit of other decree holders and therefore, in view of the provisions of Order XXI Rule 15 of C.P.C., the said petition was not maintainable. In this regard, counsel for the petitioners relied upon judgment of Hon’ble Patna High Court in case of Shaikh Mohammad Anas and another decree holders Vs. Bhupendra Prasad Shukul and others ; AIR 1938 Patna 457. Learned counsel for the petitioners further contended that the execution is being sought for removing the constructions at points l and n but in the map submitted by Ameen, which has been made part of the decree, points l and n are not shown and therefore, decree is inexecutable as the land is unidentifiable. 5. Per contra, learned counsel appearing for the respondents submitted that even though there is no recital in the execution application that the decree is being executed for benefit of all other decree holders, unless, contrary intention appears, it cannot be said that such an application is not maintainable in view of provisions of Rule 15 of Order XXI C.P.C. It has been further contended by learned counsel for the respondents that in the plaint, it has been clearly stated by plaintiff that the defendant has taken forcible possession over points l and n . Learned counsel for the respondents referred the averments made in paragraph Nos. 9 and 11 of the plaint in this regard. Learned counsel for the respondents referred the averments made in paragraph Nos. 9 and 11 of the plaint in this regard. It has also been submitted that the relief claimed in the plaint was for removal of constructions made by the defendants over points l and n and with a further relief to hand over the possession of the same. It has also been submitted that in the plaint map points l and n have been clearly shown. While decreeing the suit by judgment dated 25.05.1965, the trial court has directed the defendants to remove their constructions at points l and n existing on the land in suit and also to deliver possession over the land in suit within thirty days. Thus, there is no question of land being unidentifiable. Though, by the judgment dated 25.05.1965, the trial court directed the Ameen Map shall form part of the decree and even in case, in the Ameen Map points l and n have not been mentioned, will not be an impediment for executing the decree. It has been further submitted by counsel for the respondents that the decree is of the year 1965 and is being obstructed by the defendants by raising frivolous objections. 6. Before considering the rival submissions, it would be appropriate to look into the provisions of Order XXI Rule 15 of C.P.C. and the same is quoted as under:- "15. Application for execution by joint decree-holders. (1) Where a decree has been passed jointly in favour of more persons than one, any one or more such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where of them has died, for the benefit of the survivors and the legal representatives of the deceased. (2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interest of the persons who have not joined in the application." 7. (2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interest of the persons who have not joined in the application." 7. So far as contention of learned counsel for the petitioners that the execution application filed for executing the decree against the judgment debtors-petitioners is not in accordance with the provisions of Order XXI Rule 15 of C.P.C. In case of a joint decree, when one of the decree holders files an execution application, then it should be stated in the execution application that the execution is being filed for the benefit of all the decree holders. Learned counsel for the petitioners submitted it is an essential requirement of the provision contained in Rule 15 of Order XXI of C.P.C. and the present execution application does not fulfill the requisite condition of that provision. The requirement of Rule 15 is that one of the decree holders, who files execution application is entitled to file the execution application only when it is for the benefit of all the decree holders. 8. In case of Shaikh Mohammad Anas (supra) it has been held where an application for execution is alleged to have been made on behalf of the applicant himself and also another person having an interest in portion of a decree, it is necessary, in order to comply with the provisions of Order XXI, Rule 15 of C.P.C., to state that the application is taken on behalf of the applicant and for the benefit and on behalf of all the other persons entitled to execute the decree. Unless this is done, the application cannot be treated to have been made on behalf of both. 9. Learned counsel for the respondents relied upon judgment of Hon’ble Patna High Court in case of Panna Lal Agarwala v. Kanhaiya Lal Jain ; ( AIR 1974 Pat 284 ). In that case, it has been held that one of the decree holders can apply for execution on behalf of all and it is not incumbent for the applicant to expressly state that he is applying for all other decree holders. If it appears to the court that the decree is being executed for the benefit of all the decree holders, it may allow the execution to proceed. 10. If it appears to the court that the decree is being executed for the benefit of all the decree holders, it may allow the execution to proceed. 10. In case of Chimna vs Chunnilal ; 1955 Rajasthan Law Weekly page 460. Hon’ble Rajasthan High Court framed following question in paragraph No. 9 of the judgment, which is quoted as under:- “9. In order to decide this question, the following further points arise for consideration: (1) Whether in the case of joint-decree-holders, it is necessary that all of them should apply for the execution of the decree, or (2) Whether it is permissible by law for one or more out of several decree-holders to present an application for execution. (3) Whether in case all the decree-holders apply, it is necessary that all of them should sign the application. (4) In case only one or some of the decree-holders make an application whether the rest would also be considered necessary party if an appeal is filed?” In paragraph No. 11, the questions were answered by the Hon’ble Rajasthan High Court and the same is quoted as under:- “11. A bare perusal of this rule would show that in the case of joint decree- holders, it is not necessary that all of them should apply for the execution of the decree unless the decree itself imposes such a condition. This rule permits that one or more of the decree-holders may apply for the execution of the whole decree, but such an application must be for the benefit of all the decree-holders and if someone of the decree-holder has died, it should be for the benefit of the survivors and the legal representatives of the deceased. This clearly means that although one or more of the decree- holders are permitted to take out the execution of the whole decree, it is not for their benefit alone but for the benefit of all the decree-holders or their legal representatives. Then sub-rule (2) provides that if the court considers that there is sufficient cause to allow execution of the decree on the application of one or more of the decree-holders, then it is incumbent on that court to make such orders, as may be proper in the circumstances of the case, for protecting the interests of the persons who have not joined in the application. The answers to points Nos. The answers to points Nos. 1 and 2 would, therefore, be in the negative and in the affirmative respectively subject to the observations made above.” 11. This Court in case of Sahdeo Prasad Verma and another Vs. Dr. Raja Ram and others ; 1984 SCC Online All 64 in paragraph No. 11 has held as under:- “11. As regards an application for the execution of a decree passed in favour of co-trustees the position would be governed under the general provision contained and under Order XXI, Rule 15 of the Code. Accordingly, whereas in this case a decree has been passed jointly in favour of more persons than one, any one of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all or for the benefit of the surviving decree- holders and the legal representatives of the deceased, as the case may be. (See Panna Lal Agarwala v. Kanhaiya Lal Jain ( AIR 1974 Pat 284 ); K.M. Rao v. N. Adenna (AIR 1949 Mad 654). The execution sought by one of the decree-holders who is also a co-trustee is to be regarded in the absence of any indication to the contrary as being for the benefit of the entire body of co-trustees and the application is not, therefore, vitiated on this account. The position may have been different in case one of the co-trustees had proceeded, say, to make transfer of the trust property without joining the others such as was the case in Man Mohan Das v. Janki Pd. ( AIR 1945 PC 23 ); L.J. Iyer v. P. M. N. Iyer ( AIR 1962 SC 633 ) relied on by the Court below.” 12. From reading of the provision of Rule 15 and the case laws referred above, I am of the view under the provisions of Rule 15, any one of the several joint decree-holders may apply for the execution of the whole decree for the benefit of all the decree-holders, including the survivors and the legal representatives of a deceased decree-holder, if any. Rule 11 of Order XXI of the Code has enumerated the details which have got to be stated in the petition for execution, and rules 12, 13 and 14 of Order XXI have also laid down the details to be filled in as regards the description of the property to be proceeded against in execution of a decree. Rule 15 of Order XXI is an enabling one. Ordinarily all the persons shown in the decree as decree-holders would be entitled to execute the decree. But rule 15 has made it possible for one of the decree-holders to execute the whole decree, unless the decree itself contains any provisions to the contrary. The provisions of rule 15 apply to all cases where a decree has been passed in favour of more persons than one as joint decree-holders. If the decree itself indicates that, though a number of persons figure as decree-holders, their interests are clearly defined as to shares or as to amounts out of the, total amount decreed, the decree may not be executed by any one of them as regards the whole, because it may be several decrees contained in one document. If there are several decree-holders, who have obtained a joint decree, they may be members of a joint Hindu Mitakshara family or they may be complete strangers to each other. In the latter case, it will be incumbent upon any one of the decree-holders clearly to state in the execution petition that he is executing the decree in its entirety for the benefit of all the other decree-holders or for the benefit of the survivors and legal representatives of such of them as have died since after the passing of the decree. In the present case, decree holders are heirs of deceased-plaintiff. 13. Rule 17 of Order XXI insists upon the requirements of rules 11 to 14 being complied with, and empowers the Court to reject the application for execution, if upon opportunity being given to the applicant, the defects, if any, are not removed within the time allowed. Rule 17 does not speak of any particulars required by rule 15 to be necessarily incorporated in the application for execution. Hence in my opinion, if the particulars required by rules 11 to 14 of Order XXI of the Code have been incorporated in the petition, it becomes an application in accordance with law. Rule 17 does not speak of any particulars required by rule 15 to be necessarily incorporated in the application for execution. Hence in my opinion, if the particulars required by rules 11 to 14 of Order XXI of the Code have been incorporated in the petition, it becomes an application in accordance with law. The provisions of rule 15 are meant to safeguard the interests of the decree-holders as also to ensure that the judgment- debtor, on making payment of the decretal sum, gets a full and valid discharge. It is for the Court, in each case, to satisfy itself that, where the decree has been, on the face of it, passed in favour of more than one person, it is being executed for the benefit of all of them. In order to do that, the Court has been empowered to make such order as it deems necessary for protecting the interests of the persons who have not joined in the application for execution. In my opinion, it is not absolutely incumbent on the executing decree-holder to state in so many words in the execution petition itself that the decree is being executed for the benefit of all the decree-holders. If it appears to the Court that the decree is, as a matter of fact, being executed for the benefit of all the decree- holders, it will allow the execution to proceed, even though such a statement does not find place in the application for execution. Ordinarily, of course, such a statement ought to find place in the execution, petition itself, so that the matter is placed beyond all controversy. But the absence of such a statement from the execution petition does not necessarily entail the result that the application for execution becomes contrary to law. On first principles, therefore, and on an examination of the relevant provisions of the Code, it does not appear to me that the application for execution in the present case is not in accordance with law. Certainly, it is for the Court to lay down such conditions as would, ensure the protection of the interests of such of the decree-holders as have not joined in the application for execution. 14. In case of Jagdeo Singh and another Vs. Certainly, it is for the Court to lay down such conditions as would, ensure the protection of the interests of such of the decree-holders as have not joined in the application for execution. 14. In case of Jagdeo Singh and another Vs. Babu Lal Shah ; 1941 SCC Online Pat 298 , Hon’ble Patna High Court held that where one of the several decree holders applies for execution and other decree holders do not object to the execution being granted to him, it is not for the judgment debtor to say that sufficient steps have not been taken to safeguard interest of other decree holders. 15. The Hon’ble Madras High Court in case of Rani Veerammani Vs Rajaveerabasava Chikka Royal and 3 Others ; 1938 SCC Online Mad 320 held that the judgment debtor could only request the court under Order XXI Rule 15 to see that his interests were not in any way jeopardised by payment to one out of four decree-holders. Thus, in my view in case, no objection is filed by the other decree holders, the judgment debtor has no right to object to the execution only on the ground of non compliance of Rule 15 of Order XXI. He can at the best request that his interest may not be jeopardized in case the decree is satisfied only with respect to one of the joint decree holders. 16. It is also relevant to note that all the cases discussed above were relating to money decrees. Here in the present case, the decree is for possession. The present decree holders are the heirs of the original plaintiff, their inter se rights regarding the property are not to be considered and decided in the execution petition and it is only the decree for possession has to be executed whether at the behest of one of decree holder or by all decree holders, the result will be the same. In case of money decree, it is possible that other decree holders may be entitled for different share of money in accordance with the decree and in case the decree is being executed only by one of the decree holders and is satisfied by the judgment debtor, it might be possible that the interest of other decree holders may be jeopardized for which he may make a complain and the court executing the decree is bound to safeguard the interests of the joint decree holders as well as of the judgment debtors in such a case but not in the case at hand where the decree is only for the possession of land. 17. In my view, I am supported by Division Bench judgment of Hon’ble Andhra Pradesh High Court in case of Rampalli Ramachandrudu Vs. Bakraj Gulab Chand Firm by Gulabchand and others ; 1957 SCC Online AP 319 in paragraph nos. 17 to 19 is quoted as under:- "17. It is then contended that only one of the decree-holders applied for execution of the decree without written authority from others and, therefore, the application was not one in accordance with law. In support of this contention reliance is placed upon Rule 147 of the Civil Rules of Practice : "Where an application is made by one or more of several joint decree- holders, unless a written authority signed by the other decree-holders for the applicant to execute the decree and to receive the money or property recovered, is filed in Court, the Court shall give notice of the order, if any, passed for the execution of the decree, to all the decree-holders who have not joined in the application; and may also in its discretion give notices of any application for payment out of Court or delivery to the applicant, of any money or property recovered in execution." 18. Order 21, Rule 15, Civil Procedure Code, empowers one of the decree- holders, unless the decree imposes any condition to the contrary, to apply for the execution of the whole decree for the benefit of them all or, where any of them has died, the benefit of the survivors, and the legal representatives of the deceased. Rule 2 enables the Court to make an order as it deems necessary for protecting the interests of the persons who have not joined in the application. 19. Rule 2 enables the Court to make an order as it deems necessary for protecting the interests of the persons who have not joined in the application. 19. What is left to the discretion of the Court under Rule 2 is elucidated under Rule 147, Civil Rules of Practice, and a specific procedure is prescribed thereunder for protecting the interests of the other decree- holders. This rule is conceived in the interests of joint decree-holders and to prevent fraud being effected by one of them on others. The judgment-debtor is not affected by the infringement of the Rule and, therefore, he has no right to question the maintainability of the application on that ground. 18. Thus, in my view, there is no substance in the objection taken by the judgment debtors with regard to non compliance of Rule 15 of Order XXI of C.P.C. 19. So far as other contention of learned counsel for the petitioners that the decree is inexecutable for the reason that in the map submitted by Ameen, which has been made part of the decree, points l and n have not been mentioned, is also not sustainable for the reason that the decree always is made in accordance with the judgment which proceeds the decree. In the judgment, which is at page No. 49 of the petition from which it is clear that by the judgment dated 25.05.1965, the trial court directed the defendants to remove their construction shown at letters l and n existing on the land in suit and also to deliver possession over the land in suit. In the decree which is annexed at page No. 68 of the petition, it has been mentioned that defendants may remove their constructions from the land described by letter ? and ? and hand over possession to the plaintiff. Decree as made is quoted as under: 20. Though, in the operative portion of the judgment, the map submitted by Ameen has been made part of the decree wherein points l and n have not been mentioned in the map will not make any difference as the decree as well as judgment is very clear as it specifically directs the petitioner to remove his construction existing at points l and n which has been clearly described in the plaint itself. 21. 21. Learned counsel for the respondents relief upon judgment of the Supreme Court in case of Pratibha Singh and another Vs. Shanti Devi Prasad and another ; 2002 (8) Supreme 553 wherein Apex Court held that the exact description of property may be ascertained by the executing court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent Court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. (Paragraph No. 17) 22. Learned counsel for the respondents also relied upon judgment in case of Bhavan Vaja and others Vs. Solanki Hanuji Khodaji Mansang and another ; 1973 (2) SCC 40 , the Supreme Court held that it is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the Court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. The jurisdiction of the executing court do not began and end with merely looking at the decree as it was finally drafted. (Paragraph No. 20) 23. Thus, in my view, the contention of learned counsel for the petitioners that the property is not unidentifiable and therefore, decree cannot be executed for the reason that in the Ameen Map, which has been made part of the decree points l and n has not been shown, is unsustainable. 24. In view of the discussions made above, I am of the considered opinion that the courts below have committed no illegality in rejecting the objections filed by the petitioners under Section 47 C.P.C. The writ petition lacks merit and is dismissed. No order as to costs. 25. 24. In view of the discussions made above, I am of the considered opinion that the courts below have committed no illegality in rejecting the objections filed by the petitioners under Section 47 C.P.C. The writ petition lacks merit and is dismissed. No order as to costs. 25. Since the execution of a decree passed in year 1965 is pending, the executing court is directed to consider and decide the execution case, in accordance with law, expeditiously, preferably within a period of six months from the date of production of a certified copy of this order after giving opportunity of hearing to the parties concerned and without granting unnecessary adjournments to either of the parties provided that there is no other legal impediment.