IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 7257 of 2011 Date of decision:26th November, 2011 Buta Singh .......Petitioner Versus Darshan Singh and others ........Respondents BEFORE: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr. Kamaldip Singh Sidhu, Advocate for the petitioner. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No Vijender Singh Malik, J. Buta Singh petitioner has brought this revision petition under the provisions of Article 227 of the Constitution of India for setting aside the order dated 8.10.2011 passed by learned Additional Civil Judge(Sr. Division) Phul, vide which his objections to the execution application brought against him and others by Darshan Singh has been dismissed. He has claimed that the said objection petition has been dismissed without first deciding the applications for appointment of a local commissioner, and for setting aside the ex parte order dated 29.11.2010. Mahinder Singh father of respondents No. 2 to 7 had agreed to sell land measuring 8 Kanals in favour of Darshan Singh @ Civil Revision No. 7257 of 2011 Darshan Lal vide agreement of sale dated 30.7.1990. The sale deed in the terms of the agreement was to be executed on or before 13.01.1991. Mahinder Singh, however, sold the said land measuring 8 Kanals in favour of the petitioner Buta Singh on 19.12.1990 and delivered physical possession of the land in dispute to him. Since then, the petitioner is in peaceful possession of the land in dispute. The petitioner has claimed himself to be a bonafide purchaser of the land in question. Respondent No. 1 Darshan Singh filed a suit for specific performance against the proforma respondents. It was decreed on 14.08.1995 and the petitioner had lost upto Hon'ble Supreme Court of India. Respondent No. 1 has, therefore, filed execution application on 13.10.2005 before the learned Additional Civil Judge(Senior Division) Phul. He had made a prayer for issuance of warrant of possession of the land in question, which prayer is claimed to be illegal. The petitioner has claimed that the execution application is not maintainable. According to him, some necessary parties were left out by the decree holder. He has also claimed that Judgment Debtor no. 8 is a minor and he has not been properly impleaded. It was lastly alleged that the decree holder has no right to obtain possession of the suit land from him. The decree holder has resisted the objection petition, claiming that the same has been filed with malafide intention by the petitioner. According to him, the objection petition has been filed just to delay the disposal of the execution application. According to the 2 Civil Revision No. 7257 of 2011 decree holder a sale deed has already been executed in his favour by the local commissioner as per the order of the court and mutation has also been sanctioned on the basis of the same. According to him the possession alone is left to be given to the decree holder of the land in question. Hearing learned counsel for the parties, learned Additional Civil Judge (Senior Division) Phul has found no merit in the objection petition and has dismissed the same vide order dated 8.10.2011. Aggrieved by the aforesaid order, the Judgment Debtor -petitioner has brought this petition. I have heard Shri Kamaldip Singh Sidhu, learned counsel for the petitioner and have gone through the record. Learned counsel for the petitioner has contended that the execution application has been filed under the provisions of Order 21 Rule 11 of Code of Civil Procedure (in short 'CPC') while it should have been filed under the provisions of Order 21 Rule 34 CPC. According to him, execution application has therefore been filed under the wrong provision and same was liable to be dismissed. He has further submitted that the objection petition has been decided without deciding the application of the petitioner for setting aside the ex parte proceedings initiated against him. He has taken me through various orders passed by the executing court which are extracted in the grounds of revisions. He has submitted that the objection petition could not be decided without first deciding the application for setting aside the ex parte proceedings. 3 Civil Revision No. 7257 of 2011 The execution application (Annexure P-2) has been filed under Order 21 Rule 11 CPC. This provision gives the requisites which an application for execution should contain Order 21 Rule 34 CPC is for making application for execution of a decree for execution of document or endorsement of negotiable instruments. At the most, it could be said that the decree holder has quoted wrong provision of CPC in his application. The same is, however, not fatal. Even if no provision of CPC had been quoted in the application for execution, the application would not have merited dismissal. Learned counsel for the petitioner could not place reliance on any decision laying down a binding precedent under which the execution petition can be held liable to be dismissed for having been filed under the provision of Order 21 Rule 11 CPC. Though, the application for setting aside the ex parte proceedings, filed by objector had not been decided, yet the impugned order is not bad for this reason also. Shri Satnam Singh Mander, Advocate had appeared before the executing court for the objector while he heard the objection petition. The executing court has heard the counsel for the objector and has decided the objection petition. By hearing learned counsel for the objector, learned executing court has permitted the petitioner to participate in the proceedings. No material proceedings had taken place after the objector was proceeded against ex parte and before the objection petition has been decided which was required to be set aside in the application for setting aside the ex parte proceedings. The petitioner 4 Civil Revision No. 7257 of 2011 has been heard and this could alone be prayed by the objector to be done while deciding the application for setting aside the ex parte proceedings. Learned executing court has taken a note of the objections of the petitioner and has given valid reasons for not accepting the same in the impugned order. The decree in favour of the respondent Darshan Singh is dated 14.08.1995. Without there being a single plea to the effect that the said decree is not binding on the objector, the objector is keeping Darshan Singh respondent No. 1 away from the fruits of his decree, i.e. possession of the land in question. So I do not find any fault with the impugned order in view of the submissions made by learned counsel for the petitioner. Therefore, the revision petition merits dismissal and is dismissed as such. [VIJENDER SINGH MALIK] JUDGE 26th November, 2011 Shivani Kaushik 5