C.R. No. 1003 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 1003 of 2011 Date of Decision: 14.9.2011 Naresh Kumar ....Petitioner. Versus Narinder Singh and another ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. BBS Sobti, Advocate for the petitioner. Mr. Rajinder Krishan Aggarwal, Advocate, for respondent No.1. Mr. Anurag Chopra, Advocate for respondent No.2. AJAY KUMAR MITTAL, J. 1. This petition filed under Article 227 of the Constitution of India challenges the order dated 5.2.2011 (Annexure P-1) passed by the executing court whereby an application filed by the petitioner for framing of issues on the objections raised by him had been declined. 2. Briefly stated, the facts necessary for adjudication of the present petition are that respondent No.1 filed a suit for mandatory injunction and permanent injunction against respondent No.2 alleging that she was a licensee in the premises in question. The said suit was decreed by the trial court vide judgment and decree dated 11.10.2003. The said suit was filed only to grab the property of the petitioner who was in actual physical possession of the same under legal documents C.R. No. 1003 of 2011 -2- executed in his favour by the real owners of the property. On coming to know of the said decree dated 11.10.2003, the petitioner filed objections dated 24.8.2009 pleading that the property in question had been allotted to Dr. Surat Chander by Ludhiana Improvement Trust vide letter dated 8.12.1978 on installments and that during his life time, Dr. Surat Chander had got raised construction in the house in the suit property and he expired intestate on 9.1.1994. The original allotment letter and receipts of the payments were in possession of the legal heirs of Dr. Surat Chander-the allottee. It was pleaded in the objection petition that at the time of death of Dr. Surat Chander, his children were minor and as such his widow Ramesh Kumari and children could not manage the affairs of the suit property as she was unable to come to Ludhiana from Chandigarh to look after the suit property. Therefore, the legal heirs of Dr. Surat Chander voluntarily sold the suit property to the objector vide an agreement to sell dated 16.3.2004 for settled sale consideration of Rs.1,00,000/- and had received Rs.20,000/- as earnest money from the objector and delivered the actual and physical possession of the property to the objector and authorized him to collect the rent from the tenants occupying the two shops abutting the front side of the suit property. Since 16.3.2004, the objector was in actual physical possession of the property and electricity connection bearing account No. W51AN201369X was installed in the suit property in the name of the objector. It was further pleaded that the decree holder absolutely had no concern with the property in suit and he claims to be the owner of the said property on the basis of forged and fabricated sale agreement and that the alleged decree dated 11.10.2003 had been C.R. No. 1003 of 2011 -3- obtained by the decree-holder Narinder Singh against the judgment debtor Inderjit Kaur by fraud and by misrepresenting the court. Respondent No.1 filed reply dated 28.8.2009 to the objection petition. In the execution application, respondent No.1 had prayed for issuance of warrants of possession of the property in question. According to the objector, the remedy available to the decree holder was only under Order XXI Rule 32(i) of the Code of Civil Procedure. Respondent No.1 did not file any reply to the application for framing issues but made a statement that the objection petition is not maintainable as the objector was not in possession of the property. The executing court vide order dated 5.2.2011 dismissed the said application. Hence, the present revision petition. 3. I have heard learned counsel for the parties and have perused the record with their assistance. 4. Learned counsel for the petitioner submitted that the petitioner had purchased the property in dispute vide agreement to sell dated 16.3.2004 from the legal heirs of Dr. Surat Chander who died on 19.1.1994. The possession was also delivered to the petitioner by the legal heirs. Learned counsel for the petitioner contended that third party has a right to raise objection and in such a situation no warrant of possession could be issued against the petitioner and it was incumbent upon the executing court to have framed the issues allowing the petitioner to lead evidence. He placed reliance on Kuldip Singh v. Charan Singh and others, AIR 1986 Delhi 297, Subhash Chander and another v. Smt. Phoolwati and others, 2009(4) CCC 151 (P&H), Y. Venkata Reddy and others v. A.P. State Wakf Board represented C.R. No. 1003 of 2011 -4- by its Chief Executive Officer, Hyderabad and others, 2011(1) CCC 508 (AP), Gram Panchayat, Hassanpur v. Jagdish Chand and others, 2008(1) CCC 364 (P&H) and Sardar Hasanbhai Attar v. Usman Papamiya Attar Shaikh and others, 2008(1) CCC 446 (Bombay). 5. On the other hand, learned counsel for the respondents while controverting the aforesaid submissions of the petitioner submitted that the decree, execution of which has been prayed was passed on 11.10.2003 whereas the alleged agreement to sell produced by the petitioner being after the said date would not affect the rights of the decree-holder. It was further submitted that the decree-holder had purchased the property vide agreement to sell and the same was executed by Dr. Surat Chander in 1983. It was further stated that civil suit No. 87 of 7.2.1990 titled as “Narinder Singh v. Surat Chander and another” filed earlier by the decree-holder against Dr. Surat Chander for perpetual injunction in the year 1990 was also decreed in the year 1991. According to the learned counsel, no right whatsoever on the basis of subsequent agreement to sell could be created in favour of the objector especially when no possession could be delivered to the petitioner by the legal heirs of Dr. Surat Chander. 6. After hearing the learned counsel for the parties, I do not find any merit in the revision petition. No doubt, third party also has a right to raise objections and in an appropriate case, the executing court would examine the weight of the objections so raised. It is not every and all objections, howsoever frivolous and substanceless, would require adjudication by framing issues and leading of evidence. The C.R. No. 1003 of 2011 -5- objector is duty bound to prima facie establish that there is some merit in the objections so raised before claiming any trial on those issues by leading cogent evidence. 7. The executing court while declining the prayer of the petitioner had noticed the following facts:- “I have heard learned counsel for the parties and have gone through the file carefully. The decree in execution was passed by the court on 11.10.2003 and the decree-holder was declared owner of the property by the court and the defendant was ordered to vacate the licensed premises and hand over the vacant possession of the suit property to the plaintiff. The decree was challenged by the JD in the appellate court and the appeal was dismissed on 19.4.2007. No further appeal was filed by any of the parties and order dated 19.4.2007 has become final. Now applicant/objector Naresh Kumar who is not a party to the decree, has filed objections and counsel for the objector/applicant argued that issues be framed and evidence be recorded.” 8. Further, the executing court relying upon the case law reported in Satish Kumar vs. Shanti Devi & Ors. 2008 (4) CCC 185 (P&H) wherein it was held that there is no need to frame an issue where the objections are prima facie frivolous, vexatious and intended to delay the execution, had recorded as under:- “The decree has already become final between the C.R. No. 1003 of 2011 -6- parties and this court cannot go beyond the decree. If the defendant/JD has put in possession any third person in the premises after passing the decree, then the decree is also executable against that third person. At this stage, there is no need to frame issue before deciding the objections. So the application is devoid of any merit and the same is hereby dismissed.” 9. Adverting to the facts of the present case, it is not disputed that the decree was passed on 11.10.2003 whereby the decree holder was declared to be owner of the property and the defendants were directed to vacate the licensed premises by handing over the vacant possession to the decree-holder. The said decree having been affirmed on appeal on 19.4.2007 had become final. In the civil suit filed by the decree-holder against Dr. Surat Chander in 1990 whose legal representatives are said to be the alleged vendors of the petitioner after the date of decree, it was held that Dr. Surat Chander had sold the property to the decree-holder and had delivered the possession who was to pay the remaining installments. Therefore, no valid title, right or interest could devolve upon the objector in the property in dispute. In order to establish the bonafides of his plea, the objector was required to prima facie substantiate his plea on the basis of some relevant material. The objections now filed by the petitioner Naresh Kumar in the facts and circumstances were not maintainable and there was no requirement of framing of issues in such a situation. 10. Referring to the judgments relied upon by the learned C.R. No. 1003 of 2011 -7- counsel for the petitioner, they do not advance the case of the petitioner as the case of the petitioner in the present facts and circumstances is not bonafide and he is unable to prima facie substantiate that he has legally any claim over the property in dispute. In those cases the objector had prima facie justiciable claim for which evidence was required to be led. 11. In view of the above, there is no merit in the instant petition and the same is hereby dismissed. September 14, 2011 (AJAY KUMAR MITTAL) gbs JUDGE