E.S.A.No. 7 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH E.S.A.No. 7 of 2008 Date of Decision: 30.10.2008 Jagir Kaur and another ...Appellants Versus Parshotam Dass & another ...Respondents Present: Mr. Ranjan Bansal, Advocate for the appellants. Mr. Binderjit Singh, Advocate for respondents No.1 and 2. RAJIVE BHALLA, J(oral) The appellants challenges the judgment and decree dated 10.01.2008, passed by the Additional District Judge, Barnala, accepting the appeal filed by the respondents and as a result setting aside the order dated 27.11.2004, passed by the Civil Judge (Junior Division), Barnala (exercising the powers of an Executing Court). The appellants filed a suit for partition of land measuring 9 marlas comprised in Khasra No.1179/2/1. A preliminary decree drawn up on 17.12.1999 was followed by a final decree dated 20.03.2004. The appellants thereafter filed an application for execution. The Executing Court appointed a Local Commissioner to suggest the mode and manner of the partition. After receipt of the Local Commissioner’s report, warrants of possession were issued, but before they could be executed, the respondents filed objections asserting their possession over a part of the suit land on the basis of registered sale deeds dated 11.07.1974, 11.05.1978 and 07.06.1982 etc. The respondents prayed that as they were co-owners in possession, the warrants of possession could not be E.S.A.No. 7 of 2008 2 executed against their interest as they were not impleaded as parties to the partition suit. The learned Executing Court dismissed these objections by holding that the respondents had failed to establish their possession though they had encroached upon the suit property after the issuance of the warrants of possession. Aggrieved by the said judgment, the respondents filed an appeal. The Additional District Judge, Barnala, however, reversed this order and remanded the matter to the Executing Court for deciding the matter afresh in accordance with the provisions of Order 21 Rule 101 CPC. Counsel for the appellants submits that as the respondents were not in possession of the suit land or any part thereof, they had no right to file objections under Order 21 Rule 97 of the CPC. It is further submitted that as the respondents encroached upon a part of the suit property, after issuance of warrant of possession, the Executing Court rightly dismissed their objections. The first appellate Court, therefore, was not justified in setting aside the order passed by the Executing Court and directing the Executing Court to decide the matter afresh. Counsel for respondents, however, submits that as held by the first appellate Court, the respondents are owners in possession of the property in dispute pursuant to sale deeds dated 11.07.1974, 11.05.1978 and 07.06.1982 etc. Admittedly, they were not made parties to the proceedings for partition. As a result warrants of possession, issued pursuant to the final decree, could not be enforced against them. It is further submitted that the impugned order does not suffer from any error. I have heard counsel for the parties and perused the impugned judgments. It is not denied that Wazir Chand executed sale deeds dated 11.07.1974, 11.05.1978 and 07.06.1982 etc. alienating a part of the E.S.A.No. 7 of 2008 3 property in dispute. It would also be necessary to mention here that the Additional District Judge has held that the decree holders i.e. the appellants have candidly admitted that the objectors i.e. the respondents are in possession of the suit property. In view of these admissions the Executing Court was required to decide the objections by following the procedure under Order 21 Rule 101 of the CPC. The contention raised by counsel for the appellants that the respondents forcibly occupied the property after issuance of warrant of possession, is a matter that would require a detailed determination by the Executing Court under Order 21 Rule 101 CPC. In view of what has been stated hereinabove, as the impugned order does not suffer from any error, the appeal is dismissed. The Executing Court is, however, directed to decide the objections, within a period of four months from the next date of hearing. Parties are directed to appear before the learned Executing Court on 17.12.2008. October 30, 2008 (RAJIVE BHALLA) nt JUDGE