IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 206 of 2004 Date of Decision: 10th November, 2009 Liaq Ram Petitioner Versus Smt. Gangotri and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the petitioner: Mr. Rakesh Manta, Advocate. For the respondents: Mr.Bhupender Gupta, Sr. Advocate, Mr. Janesh Gupta, Advocate, for respondents No. 1 to 7. Ms. Uma Manta, Advocate, for respondents No. 8 to 10. Sanjay Karol, J. (Oral) The present petition under Article 227 of the Constitution of India has been filed by Shri Liaq Ram effectively against the decree holders being respondents No.1 to 7 herein (referred to as the decree holders). The other respondents are in effect proforma respondents. In terms of impugned order dated 31.5.2004 passed by Civil Judge (Jr. Division), Theog, District Shimla, H.P. in CMA No. 75/6 of 2004/2003, titled as Liaq Ram vs. Kahan Chand and others, the petitioner’s application filed under order 21 Rule 26 read with Section 151, CPC stands dismissed. Brief facts necessary for adjudication of present petition are as under:- Whether the reporters of Local Papers are allowed to see the Judgment? 2 In the year 1969 the decree holders filed a suit for declaration to the effect that they are owners of ½ share in the land comprised in Khata/Khatauni No.84/164 (now 92/172), Khasra Nos. 1676/1005 and 1007, situated in Chak Ratnari, Tehsil Kotkhai, District Shimla, measuring 37-18 bighas. (referred to as the suit land) The suit was contested by various defendants including Shri Bhagat Ram whose share in the suit land stands purchased by the petitioner herein. In terms of judgment and decree dated 7.5.1984 passed by the Sub Judge, Theog, District Shimla, H.P. Civil Suit No. 143-1 of 1967/142-1 of 1969 was decreed in favour of the decree holders. The operative portion of the said judgment is reproduced as under:- “In the light of my findings on above issues, the suit of the plaintiff’s is decreed with costs and the plaintiffs are declared in possession of ½ share in the land comprising Khata Khatauni No.84/164, Khata Khatauni No.92/172, Khasra Nos. 1676/1005 and 1007, measuring 37-18 bighas, situated in Chak Ratnari, Tehsil Kotkahi, with a right to partition the same by metes and bounds” Aggrieved of the same, the defendants to the suit filed an appeal and in terms of judgment and decree dated 6.9.1986, the Additional District Judge, Shimla, upheld the findings of fact returned by the trial Court and dismissed the appeal. However, in view of its findings that the suit property already stood partitioned the decree was modified. The operative portion of the judgment reads as under:- “As a result of my negative finding on point No.3, appeal is dismissed. However, in view of the 3 finding on point No.2, decree of the lower court is modified as follows. Instead of the decree of declaration passed by the lower court decree for possession of 21 Bighas land comprised in khasra numbers 1676/1005 and 1007 min entered in khata No.84 Khatauni No.164 min situate in Mauza Ratnari, Paragna Baghi Mastgarh is passed in favour of the plaintiffs/respondents and against the appellants/defendants. Decree sheet be drawn and file consigned to the record room, after completion. Record of the lower court be returned together with a copy of this judgment.” The defendants further unsuccessfully assailed the same, which is evident from order dated 20.8.1997 passed by this Court. Thus the findings returned by the lower Appellate Court and the decree attained finality. On 17.12.1998 Shri Liaq Ram, the present petitioner (referred to as the applicant) purchased the share of defendant Shri Bhagat Ram (judgment debtor) in the suit property. This is the undisputed position as confirmed by the learned counsel for both the parties. After the dismissal of the appeal by this Court, the decree holders sought execution of the decree by filing an execution petition, which was opposed by the judgment debtors. The objections stood dismissed by the executing Court on 27.6.2003 and the order, in totality reads as under:- “This order will dispose of the objections raised by J.D.s to the present execution petition. It has been pleaded that the decree is not executable as it was mentioned in the decree that Khasra Nos. are entered in a Khata No.84, Khatoni No.164 min, situated at Mauja Ratnari but there is 4 no Khasra No. in that Khata/Khatoni and the Khasra No. is entered in Khata/Khatoni No.84/156 and 85/164 as per the jamabandi for the year 1950-51 and 1958-59 attached with the suit. The executing court cannot go beyond the decree. The legal heir of J.D. Mast Ram have not been impleaded and, therefore, the execution is not maintainable. The objections are opposed by filing the reply denying the contents of the objections. It was asserted that applicant had prayed for possession of khasra No.1676/1005 and 1007 and the decree has been passed regarding those Khasra Nos. Khatoni Nos. are changed after every five years. The land is in possession of the J.D.s who have filed these objections and the same is to be recovered from them. Hence, it was prayed that these objections be dismissed. Heard. The decree has been passed for possession of 21 bighas of land comprised in Khasra No.1676/1005 and 1007 min entered in Khasra No.84 and Khatoni No.164 situated in Mauja Ratnari, pargana Baggi against the defendants. It is true that in the copy of jamabandi for the year 1958-59 and 1950-51, Khasra No. 1676/1005 and 1007 min have been entered in Khasra No.84, Khatoni No.156 and in the copy of jamabandi for the year 1950-51 these Khasra Nos. have been entered in Khata No. 85 min, Khatoni No.163 min and 164 min. thus, these Khasra Nos. have not been entered in Khata/Khatoni No.84/164. But that will not make any difference to the decree. It was laid down by the Hon’ble High Court in Raj Kumari versus Suresh Kumar 2002 (2) Sim.L.J.1446 that a executing court is under an obligation to interpret the decree in a correct manner and to remove the ambiguity if any after going through the pleading and other record of the suit. If the decree is interpreted in its right perspective, it would be apparent that the same was regarding Khasra No.1676/1005 5 and 1007 min. Khata/Khatauni Nos. are changed with the formation of a periodical record and thus in absence of the year these cannot be pin pointed with certainty. But the fact remains that these Khasra Nos. have remained unchanged and the plaintiff wanted the possession of the same and the suit was decreed regarding this. Therefore, in view of this, the objection that Khata/Khatoni Nos. have been wrongly mentioned cannot be accepted when the land is identifiable at the spot. Sh.M.L.Chauhan, ld. Counsel for the D.H. has made the statement that he does not want to proceed against Mast Ram who had died. In view of this, the objection that Mast Ram had died and his legal representatives were not brought on record looses the significance. Therefore, the present objections are dismissed. Now the warrant of possession be issued returnable for 19.8.03.” Admittedly this order has attained finality. The executing Court held the land to be sufficiently identifiable at the spot. On the basis of warrant of possession having been issued by the executing court the possession of the suit land was ultimately handed over to the decree holders and the decree stood satisfied on 8.8.2003. Noticeably the decree holders were ultimately able to enjoy the benefits of their property after a long gap of 36 years. The matter, however, did not rest there as Shri Liaq Ram, instituted another set of proceedings. Before the executing Court, the applicant filed two applications dated 28.8.2003, the first being under Order 21 Rule 99, CPC and second under Order 21 Rule 26 read with Section 151, C.P.C. 6 Importantly, the prayer in both the applications is same and similar though prayer in the second application is for interim order during the pendency of the first application. While passing orders in an application under Order 21 Rule 26, CPC, the trial Court in effect has considered and decided the contentions raised in the main application. The impugned order has been assailed, inter alia, on the ground that the Court below seriously erred in not considering and applying the ratio of law laid down by the Apex Court in Samir Sobhan Sanyal vs. Tracks Trade Private Ltd. and others, (1996) 4 SCC 144 and this Court in Rajeev Dutta and others vs. Punjab Wakf Board and another, 2002(3) Shim.L.C. 315. It is also argued that during the pendency of the main application, the Court could not have ventured into the merits of the main application and decided the controversy in issue. Having heard learned counsel for the parties, I have perused the record. Order 21 Rule 26, CPC reads as under:- “26. When Court may stay execution. -(1) the Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay execution, or for any other order relating to the decree or execution which might have been made by such Court of first instance or Appellate Court if execution had been issued thereby, or if application for execution had been made thereto. 7 (2) Where the property or person of the judgment- debtor has been seized under an execution, the Court which issued the execution may order the restitution of such property or the discharge of such person pending the result of the application. (3) Power to require security from, or impose conditions upon, judgment-debtor- Before making an order to stay execution, or for the restitution of property or the discharge of the judgment-debtor, the Court shall require such security from, or impose such conditions upon, the judgment-debtor as it thinks fit.” Evidently the applicant filed both the applications dated 28.8.2003 after the possession of the suit land stood handed over to the decree holders and the decree stood satisfied. Hence the application under Order 21 Rule 26 was not maintainable as the decree stood satisfied. Importantly, the applicant had stepped into the shoes of original judgment debtor Shri Bhagat Ram, as the land was purchased from him after this Court had upheld the judgment and decree dated 6.9.1986 passed by the lower Appellate Court. The applicant’s rights and title to the property came with all limitations and liabilities. Order 21 Rule 99, CPC reads as under:- “99. Dispossession by decree-holder or purchaser -(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, 8 he may make an application to the Court complaining of such dispossession. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.” Undisputedly, the applicant cannot be said to be a person “other than the judgment debtor” as his rights, title, interest and liabilities flowed from that of the original judgment debtor. The applications in fact were misconceived in law. I have no doubt that the applications in question were filed by the applicant only with the sole object and purpose of overreaching the orders passed by the Courts. The applications have been filed also to frustrate the rights of the decree holders. The process of law has been abused. In Rajiv Dutta (supra), the Court was dealing with a case where the matter was at the stage where the objections to the execution petition were yet to be decided. The said ratio is not applicable to the facts of the instant case at all. In the instant case not only the decree had attained finality but the order dismissing the objections filed by the judgment debtors in the execution petition had also attained finality. Hence in collateral proceedings, the applicant cannot be allowed to go into the correctness of the findings returned therein. Reliance on Samnir Sobhan Sanyal (supra), is also misconceived. The facts are totally different. There the Court was dealing with a case of a tenant who had been unlawfully dispossessed from the premises without any due process of law. In the instant case the facts as noticed hereinabove are entirely different. The present applicant had no independent right of his own. 9 Importantly, there is no ambiguity in the decree passed by the lower Appellate Court. As per the plaint, the total suit land was approximately 37-18 Bighas. The lower Appellate Court, relying upon the jamabandies (revenue record) for the year 1958-59 (Ext.DW-2/A), 1950- 51 (Ext.DX-2), 1954-55 (Ext.DX-3), 1958-59 (Ext.DX-4) and 1962-63 (Ext.DX-5), held that land in fact stood partitioned and in exclusive possession of one Shri Shibu, whose share was purchased by Shri Ramanand, father of decree holders on 15.11.1960. Importantly, the warrants issued are clear and contain complete description of the property in terms of the decree passed by the lower appellate Court. The report dated 8.8.2003 of the Field Kanungo is also clear and there is no ambiguity/mistake with regard to the description of the property therein. The possession of the decretal property was handed over to the decree holders in the presence of the witnesses including the applicant’s wife. While dismissing the application, the Court below has recorded as under:- “9. the third and main contention is that the land was not property identified by the revenue officials on record while delivery of possession as the suit land was not part of the decree. It is alleged that the land which was part of the decree was comprised of Khasra No.1676/1005, measuring 4-2 bighas and 1007 min measuring 16, 18 bighas in total 21 bighas. Apart from this, there was another Khasra Number denoted as 1007 min, measuring 16, 18 bighas, wherein the predecessor-in-interest of respondents No.28 to 30 i.e. Late Shri Bhagat Ram was recorded owner in 10 possession alongwith other co-sharers. As such in the later Jamabandi for the year 1968-69, Late Shri Bhagat Ram came to be incorporated as absolute owner of the land which fell into his share being ancestral property and thereafter it devolves upon the respondents No.28 to 30 who accordingly sold it in favour of the applicant. The applicant further has taken the plea of proper identification of the suit land, but the material on record shows that he himself has failed to correctly explain the position which remained after breaking up of the earliest parcel of land measuring 37.16 bighas. It is true as per the findings of the Ld. Appellate Court that this parcel of land stood partitioned amongst the co-sharers in the manner that Khasra No.1676/1005 measuring 4-2 bighas and 1007 min measuring 16.18 bighas were allotted to deceased Shibu and Khasra No.1007 min, measuring 16.18 bighas to other co-sharers. It is on the basis of the same, the decree was modified by the Ld. 1st Appellate Court for 21 bighas in favour of the plaintiff/ contesting respondents. The applicant has come forward with the plea that the present suit land is part of the land which remained with other co- sharers and not the land which was part of decree. To establish the same, the applicant has placed on record the copy of mutation No.2731, as well as copies of jamabandies pertaining to suit land and its old numbers. The revenue officials while giving effect to the judgment and decree in execution of this court mentioned in its report that the land on the spot which remained part of the decree stands divided into sub Khasra numbers of which present suit land. As per their report, it appears that suit was part of land which was mentioned in judgment and decree. Also at the time of execution the question of identification was raised by JD which was thrashed by this court and accordingly W/ Possession were issued which was given effect. It was, therefore, for the applicant to clarify this 11 ambiguity so created by him. He is specific that the suit land is not part of decree, whereas it is the other land which remained with other co-sharers on partition. He on record has filed documents of records of right pertaining to suit land, but has failed to produce the relevant documents pertaining to old entire land i.e. 37-16 bighas so as to explain its breaking and the land which was in actual part of decree and the other land which was not part of the same. He was also required to explain the land which remained part of the decree to show that the same stands divided or partitioned into such and such khasra numbers and their area with its nature and possession. This was so required to distinguish the same from the land which in actual remained in-possession of the co-sharers which is alleged to have fallen in the share of Bhagat Ram so claimed by the applicant. However, in revenue records filed by him, the suit land has been shown to be earlier owned and possessed by respondents No.28 to 30, but this court and revenue officials while giving effect to the judgment and decree came to conclusion that the said numbers are the part of land which was there in the decree. The applicant has come forward with application under order 21 Rule 99 CPC for restoration of possession on the ground that he has been illegally dispossessed therefrom. He, as such, in view of the same was required to explain and show the actual and factual position of the spot so as to be entitled for the restoration so claimed. Until and unless, he explains all such positions/possibilities of the spot, he is not deemed to be an aggrieved party to be entitled for restoration as claimed. 10. It is further contended that the Field Kanoongo on receiving the warrant of possession had reported that the land on spot is not identifiable and accordingly had returned the warrant of possession for clarification. On the basis of same it is alleged that it was the court only who 12 could have clarified the said facts. This contention does not appear to be meritful. The warrant of possession was issued by this court to Collector concerned, who further passed it to his subordinates to give it to effect as per judgment and decree. The Field Kanoongo who visited the spot only depicted the position of the land so existing on the spot of the land which was the part of the decree. It has nowhere been mentioned that there is a dispute of identification of the land with respect to its corresponding land remained prior to partition. He has simply mentioned as per latest records the land has been recorded in the name of applicant and also about the nature of other land which was so derived from the actual land remained part of the decree. He submitted his report to the Tehsildar concerned, who after going through the same asked him to give effect to the judgment and decree in its true spirit as directed by the court and accordingly the effect was given and the warrant of possession was returned with forwarding letter of Collector, dated 16.8.2003 that the execution has been given effect as sought by the Hon’ble Court. Had there been clarification sought by the Collector, the matter would have been otherwise, whereas the clarification so is inter se in the executing agency. 12. The aforesaid discussion shows that the applicant has failed to show at this stage that the suit land was not part of decree and he has been dispossessed unlawfully. Though, the copy of sale deed placed on record by the applicant shows that he has purchased suit land prior to execution petition. But at this stage, the material on record is not sufficient to make of a prima facie case and balance of convenience in favour of applicant so as to show every likelihood in allowing of the main application, as such making him entitled for the restoration of possession during the pendency of the main application. The result is that the 13 application deserves dismissal and is accordingly dismissed. After registration be tagged with the main.” How the aforesaid findings are erroneous or are not borne out from the record could not be pointed out during the course of hearing. Much emphasis was laid on the fact that in the decree it was wrongly recorded that partition had been effected whereas the position in realty was different, hence the decree could not have been executed without looking into the pleadings of the parties. I am afraid the contention needs to be rejected. There is no ambiguity in the decree, moreso, for the reason that order dated 27.6.2003 passed by the executing Court attained finality. In any event of the matter, I have looked into the record minutely to ascertain the position as to whether there is any ambiguity or not and to my mind there is none. It is not a case of the applicant that decree-holders have received possession of land in excess than what was given to them in the decree. It is also not the applicant’s case that the decree was executed in collusion with the revenue officials. Further, it has been contended that rather than taking possession of the applicant’s land the same ought to have been taken from the other co-sharers. The contention needs to be rejected as it cannot be disputed that the decree-holders were entitled to that part of the land which was in exclusive possession of Shri Shibu, the original co-sharer. The Court below has extensively dealt with this aspect of the matter. The onus to plead, prove and establish that the land of the applicant was not part of the suit land for which the decree was passed or that he was unlawfully dispossessed was heavy upon him. The Court below has rightly observed that the applicant has in fact failed to prove the same. 14 Reliance on the decisions rendered by various Courts in Smt. Usha Ghosh vs. Rabindra Nath Das and others, AIR 1993 Cal. 128, Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and another, (1997) 3 SCC 694, Vijay Kumar vs. Jaswinder Singh, 2002 (2) Shim.L.C. 248 and Raj Kumari and others vs. Suresh Kumar and others, 2002 (2) Shim.L.C. 450, does not advance the case of the applicant in any manner. Procedural irregularities, if any, in the execution of a decree cannot be a ground for defeating a legitimate right of a party, who has been endlessly waiting for justice. The Court below had dealt with the submissions as made by the learned counsel during the course of hearing. Even here Mr. Manta, has in effect argued the matter in totality touching the merits of the application filed under Order 21 Rule 99, CPC, hence, it would not be correct to contend that the Court below could not have decided the controversy in issue in its entirety. The applicant is not a bonafide purchaser. Therefore, there is no question of any adjudication of his independent right, title or interest in the suit land other than flowing from the judgment debtor Shri Bhagat Ram. In the impugned order, there is neither any perversity nor any illegality or irregularity entitling the petitioner for any indulgence. For all the aforesaid reasons, the present petition is dismissed. Interim order is vacated. 10th November, 2009 (Sanjay Karol) (C) Judge. 15