Civil Revision No. 4052 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4052 of 2007(O&M) Date of Decision: January 19 , 2010 Subhash Chand ...... Petitioner Versus Mukut Bihari and another ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Rajinder Goyal, Advocate for the petitioner. Mr.Kuldeep Tiwari, Advocate for respondent No.1. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This revision has been filed against concurrent orders of the Courts below declining the objections of the petitioner. The respondent No.1 had filed a suit for specific performance against respondent No.2 in respect of an agreement to sell dated 10.1.2000. After the suit was decreed and during its execution, the petitioner filed objections dated 7.8.2005 claiming that the respondent no.1 had also executed an agreement to sell in his favour dated 5.12.1995 and, therefore, claiming a prior right in the property and ultimately praying for dismissal of the execution application. The learned trial Court dismissed the objections as being not maintainable as well as on merits holding that it was clear that the petitioner was acting in collusion with respondent No.2. The learned Lower Appellate Court held Civil Revision No. 4052 of 2007(O&M) 2 that the objections were maintainable but confirmed the finding of collusion. The Lower Appellate Court further held that since the petitioner had admittedly not filed any suit for specific performance on the basis of the alleged agreement in his favour for almost ten years and since such a suit would now be barred by limitation, the present objections merited dismissal. The only argument of learned counsel is that once the Lower Appellate Court held that the objections were maintainable it was incumbent upon him to have remanded the case back to the Executing Court for trying the said objections after framing issues and allowing the parties to lead evidence. Though in normal circumstances such an argument would have to be accepted yet in view of the findings of fact recorded by the Courts below regarding the apparent collusion between the appellants and the judgment debtor the learned Lower Appellate Court was justified in dismissing the objections. In Silverline Forum Pvt. Ltd. v. Rajiv Trust and another reported as AIR 1998 SC 1754 the Hon'ble Supreme Court held as follows:- 'It is clear that Executing Court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed inquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course, the Court can direct the parties to adduce evidence for such determination if the court deems it necessary.” Civil Revision No. 4052 of 2007(O&M) 3 In my opinion, the present case is fully covered by the decision of Hon'ble Supreme Court in Silverline Forum Pvt.Ltd.' case(supra). To the similar effect is the judgment of this Court in M/s Dashmesh Rice Mills and others v. M/s Govind Ram Anil Kumar reported as 2003(3) P.L.R. 514 wherein it was held as under:- “Another argument that the issue should have been framed by the executing Court or the decree was required to be consistent with the pleadings do not require any detailed examination because there was no such controversy before the executing Court as to warrant framing of issue or inconsistency between the judgment on the one hand and framing of decree on the other. The question as to whether in the facts and circumstances of the case, the issues were required to be framed or the controversy could be settled without doing so is dependent on the facts of each and every case. If there are serious objections requiring proof of facts to resolve the controversy, the executing Court is free to frame issues and then proceed with the execution. However, in the instant case, no illegality has been committed by the executing Court by refusing to frame issues because the objections were frivolous and did not require holding of an enquiry necessitating framing of issues.” In Rocky Tyres v. Ajit Jain reported as 1998(3) PLR53 this Court held as follows:- “It is a settled principle of law that it is not incumbent upon the executing Court that it must put to trial every objections which are filed in any execution proceeding, even if prima facie they Civil Revision No. 4052 of 2007(O&M) 4 appear to be frivolous, vexatious and are only intended to delay the execution and frustrate the procedure of law or where it amounts to an abuse of the process of the Court. In this regard reference can be made to a judgment of this court in Execution Second Appeal No. 2333 of 1996, Bhagwan Singh and others v. Parkash Chand, decided on 7.11.1996. The Court after detailed discussion and following the principles enunciated by the Hon'ble Supreme Court of India in the cases of Babu Lal v. Raj Kumar , 1996(2) RRR 109, Munshi Ram and others v. Delhi Administration, AIR 1968 Supreme Court 702, B. Gangadhar v. B.G. Rajalingam, 1995(3) RRR 188, and noticing judgments of various High Courts, held as under:- “Now for considerable period it is not only the judicial trend which has declined to interfere to protect unlawful possession or possession of ranked trespasser etc. but, on the other hand, judicial anxiety has been to give effective relief to the successful parties by expeditious execution of decrees in favour of the parties. Unnecessary prolongation of litigation sometimes results even in frustrating the decree itself. Such attempt on the part of the objector to frustrate a decree is a mischief which has to be prevented by due process of law and expeditious decision of such ill-founded and frivolous objections would also be in the interest of justice and within the permissible field of jurisdiction of the execution.” “If frivolous objections of the present kind are permitted to unreasonably and unnecessarily prolong the delivery of possession to a decree holder in accordance with law, it would certainly amount to putting a premium on abuse of process of law” Civil Revision No. 4052 of 2007(O&M) 5 Thus the cardinal principle of law that follows is that the purpose of granting an opportunity to prove his case to an objector while entertaining objections under Section 47 read with Order 21 Rules 97 to 108 of the Civil Procedure Code does not amount to permission for abusing the process of law or Court. The discretion must be exercised by the Court in such cases. Of course discretion is governed by settled judicial principles and must be exercised within four corners of law, but such a discretion cannot be termed as a mere routine exercise of judicial discretion. Either way it should be for well founded and settled principles governing the subject.” In this view of the matter the argument that once the objections were held to be maintainable the case had to be remanded back cannot be accepted. As regards the finding of fact, the conduct of the petitioner in admittedly not filing any suit for specific performance on the basis of the alleged earlier agreement for a long period of 10 years makes it clear that the present objections were filed only at the behest of respondent No.2 and in collusion with him. Learned counsel has not been able to persuade me that this finding of fact is so perverse so as to justify interference under Article 227 of the Constitution of India. Consequently this revision is dismissed. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE January 19, 2010 sunita