IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 04.10.2010 C.R.No.1715 of 2001 Jaswant Kaur and others ...Petitioners Versus Dilbagh Rai etc. ...Respondents C.R.No.1716 of 2001 Sadhu Singh and others ...Petitioners Versus Dilbagh Rai etc. ...Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA Present : Mr. Arun Jain, Sr. Advocate, with Mr. Chetan Salatia, Advocate, for the petitioners. Mr. Naresh Prabhakar, Advocate, for the respondents. HEMANT GUPTA, J. (Oral) This order shall dispose of Civil Revision No.1715 of 2001 filed by Jaswant Kaur and others (Objector No.14) and Civil Revision No.1716 of 2001 filed by Sadhu Singh and others (objector No.5) against the order passed by the learned Executing Court on 02.12.2000 and order in appeal dated 27.03.2001. The case has a chequered history, but for the purposes of present revision petitions, it is not necessary to give the complete background. One Mahant Anand Sarup allegedly died in the year 1920. The disputes arose regarding the succession to the property after his death. Multifarious C.R.No.1715 of 2001 litigations have been instituted after the death of Mahant Anand Sarup. In respect of present revision petitions, one Jasbir Chand Mahant @ Yashvir Chand filed a suit for possession claiming to be Mahant appointed by Begh on 24.04.1960 against Smt. Bachan Kaur and Jaswant Kaur, widows of Mahant Anand Sarup, who claimed title over the suit property by way of natural succession. The said suit was dismissed by the learned trial Court, but was decreed by this Court on 27.08.1968 in RFA No.353 of 1963. The appeal against the said judgment stands dismissed on 10.01.1980 by Hon’ble Supreme Court. In the judgment of this Court, it was noticed that most of the property was in the possession of the tenants. Before the Hon’ble Supreme Court, the counsel for the defendants namely Smt. Jaswant Kaur and Bachan Kaur offered to surrender possession provided the plaintiff pays maintenance at the rate of ` 500 per month. After the said decree was affirmed by the Hon’ble Supreme Court, the decree-holder sought execution of the aforesaid decree for possession, which was resisted by filing an objection petition by 17 objectors. The said objection petition was dismissed by the learned Executing Court on 02.12.2000. 16 separate appeals were filed by the objectors and such appeals were dismissed on 27.03.2001. Mr. Parshar, learned counsel for the decree-holder has handed over a photocopy of the objections filed by the present objectors. It is alleged that Smt. Bachan Kaur was the owner, whereas the objectors were occupancy tenants under her in land measuring 135 Kanals 1 Marla, as detailed in para No.1 of the objection petition, as per jamabandi for the year 1966-67. The petitioners relied upon an order passed by the Assistant Collector, Ludhiana, under Section 18 of the Punjab Security of Land Tenures Act, 1953 on 08.07.1965, whereby the land was ordered to be 2 C.R.No.1715 of 2001 transferred to Babu Singh, Sadhu Sinh and Pooran Singh. Thus, objector No.1 Sadhu Singh has claimed possession of one third share; objector Nos.2 to 5 claimed one half share and objector Nos.6 to 9 claimed one sixth share of entire land. Such objections have been dismissed by the Executing Court holding that the order of purchase passed by the Assistant Collector is after the filing of the sit and thus, hit by doctrine of lis pendence and will not confer any better right than the defendants in the suits. Learned counsel for the petitioners has vehemently argued that the Executing Court has not framed any issues to adjudicate the right of the present petitioners and an opportunity to lead evidence to prove the objections raised has not been granted. It is contended that decision on the objections without granting an opportunity of leading evidence is not tenable, as the order passed in proceedings under Order 21 Rule 97 of CPC has a force of decree and therefore, such order has to be a reasoned order after granting an opportunity to lead evidence. Reliance is placed upon the judgments of Hon’ble Supreme Court and this Court reported as Shreenath Vs. Rajesh (1998) 4 SCC 543 and Pohlo Ram Sharma and others Vs. Narinder Singh Randhawa and others 2008(1) RCR (Civil) 442 respectively. Having heard learned counsel for the parties at some length, I do not find any merit in the present revision petitions. As per the averments made in the objection, the petitioners were inducted as tenants by Smt. Bachan Kaur widow of Mahant Anand Sarup, who has lost the suit for possession vide judgment of this Court dated 27.08.1968 and affirmed by the Hon’ble Supreme Court on 10.01.1980. As a consequence of the decree granted in favour of Jasbir Chand Mahant @ Yashvir Chand, the petitioner who is claiming to be inducted as a tenant by Smt. Bachan Kaur cannot 3 C.R.No.1715 of 2001 claim any better right than Smt. Bachan Kaur in the property. Since Smt. Bachan Kaur was found not to have any title or interest in the suit property, therefore, no right, title or interest could be transferred by her in favour of the petitioners, who are claiming tenancy rights under Smt. Bachan Kaur. The petitioners have not claimed that they were inducted as tenant by Mahant Anand Sarup. The petitioners cannot be said to be in possession prior to filing of the suit. The names of the petitioners appear in the jamabandi for the year 1966-67 as per the averments made in the objection petition. Since the transfer of possession in favour of the petitioners is not prior to the filing of the suit, the induction of the petitioners as tenants after the filing of the suit will not defeat the rights of the decree-holder. Learned counsel for the petitioners has further argued that Dilbagh Rai is claiming interest in the property as son of Jasbir Chand Mahant @ Yashvir Chand after his death. It is contended that since Jasbir Chand Mahant @ Yashvir Chand has claimed his appointment as Mahant after the death of Mahant Anand Sarup, Dilbagh Rai cannot claim institution by succession. In the absence of any evidence of appointment of Dilbagh Rai, Dilbagh Singh cannot claim any interest in the suit property so as to claim possession from the tenants. The said argument does not warrant any serious consideration for the reason that the petitioners have not raised any objection of such kind in their objection petition. The question, whether Dilbagh Rai is a Mahant has not been disputed by the petitioners in the objection petition and therefore, the petitioners cannot be permitted to make out a new case at the revisional stage. The argument that the Executing Court should have permitted the petitioners to lead evidence in respect of the fact that the petitioners 4 C.R.No.1715 of 2001 were inducted as tenants prior to the filing of the suit or even by Mahant Anand Sarup during his life-time or Dilbagh Rai has not proved to be duly appointed Mahant, does not arise for consideration, as no such objection has been raised in the objection petition. Since the objections under Order 21 Rule 97 have to be decided as a suit, the pleadings have to be construed strictly. In the absence of any pleadings or a particular fact, the petitioners cannot be permitted to raise an argument based on facts in the revision petition for the first time. Recently, the question whether issues are required to be framed in an objection petition under Order 21 Rule 97 was raised before this Court in C.R.No.5054 of 2010 titled “Nirdosh Kumar Vs. Vijay Kumar and others” decided on 16.09.2010 and it was held that when the objections are false and frivolous and filed just to defeat and delay the execution, the issues are not required to be framed. It was held to the following effect :- “The question whether evidence is required to be led in support of the objections will depend upon the nature of the objections, the points of controversy and the issues, if any, arising out of the respective pleadings. Even if the issues are required to be framed, the question whether the Objector is entitled to seek stay of the execution of the decree pending adjudication of such objections are to be considered. The stay of execution of the decree can be granted only if there is prima facie case; balance of convenience and likelihood of irreparable loss or injury to be suffered by the Objector. The onus to prove these ingredients is heavy on the Objector in execution proceedings as the objections filed by the Objector infringes with the fruits of the decree granted in favour of the decree holder after the due adjudication of the process of law. In terms of the judgment of this Court in 2008 (4) Civil Court Cases 185, Satish Kumar Vs. Shanti Devi and others , there is no 5 C.R.No.1715 of 2001 necessity to frame issues in all cases where the objections have been filed by third party. This Court in 1996(2)Rent Controller Reporter 270 Som Parkash vs. Santosh Rani held that adjudication within the meaning of Order 21 Rule 97 of the Code of Civil Procedure does not mean that framing of the issues is always necessary for the Executing Court. If the pleas raised by the Objector in his objection petition have been considered by the Executing Court, it is a proper application of mind for which there should not be any grouse. In 1998(3) PLR 53 Rocky Tyres vs. Ajit Jain this Court held to the following effect: - “It is settled principal 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 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 court in Execution Second Appeal No.2333 of 1996, Bhagwan Singh and others vs. 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, J.T. (1996) 2 716, Munshi Ram and others v. Delhi Administration, A.I.R. 1968 Supreme Court 702, B. Gangadhar v. B.G. Rajalingam, A.I.R. 1996 S.C. 790, and noticing judgments of various High Court, 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 6 C.R.No.1715 of 2001 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 un-necessarily 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”. Thus the carnal 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 2002(2) PLJ 78 , Minakshi Saini vs. Gurcharan Singh Bharmra, this Court has held to the following effect: - “.........also in another case that need of framing of issues would depend upon the facts and circumstances of each case and it is not incumbent upon the Executing Court that it must put to trial every objection filed in execution proceedings may be frivolous, vexatious and delay causing objections can be summarily decided.” Later in, 2004(4)RCR(Civil) 422 Bikram Singh vs. Surjit Singh and others this Court relied upon a judgment of this Court in Rocky Tyres's (supra) and held that the purpose of granting an opportunity to prove his case to an Objector does 7 C.R.No.1715 of 2001 not amount to permission for misuse of the process of law of Court. It was held in as under: - “It is settled principle of law that it is not incumbent upon the executing court that it must put to trial all objections which are filed in any execution proceeding, even if prima facie they 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.” Therefore, I am of the opinion that the facts of the present case do not warrant framing of issues and or stay of the execution of the decree against the interest of the decree holder. The judgment of Hon’ble Supreme Court in Shreenath’s case (supra) is not helpful to the argument raised by the learned counsel for the petitioners, as it has been pointed out that the objections are sought to be decided by the Executing Court so that parties are not thrown out to relegate itself to the long drawn out arduous procedure of a fresh suit. This is to salvage the possible hardship both to the decree-holder and other person claiming title on their own right to get it adjudicated in the very execution proceedings. Therefore, the objections filed by the petitioners are to be decided by the Executing Court. But on a careful reading of the objections itself, it is found that the objector has no right or interest in the suit property, it was not necessary for the trial Court to frame issues so as to delay the execution any further. In Pohlo Ram Sharma’s case (supra), this Court has, prime facie, found that the objectors have based their claim on the decree passed in their favour, which was inter se between the parties. In view of the said fact, it was found that an opportunity is required to be provided to the parties to lead evidence. However, in the present case, even though the 8 C.R.No.1715 of 2001 petitioners were not party to the suit for possession filed by Jasbir Chand Mahant @ Yashvir Chand, but the lessor of the petitioners were party. It was found that Smt. Bachan Kaur and Jaswant Kaur, widows of Mahant Anand Sarup have no right, title or interest in the suit property under whom the petitioners derive their interest. Therefore, the intent of lease created in favour of the present petitioners was without any title with the lessor of the petitioners, which alone would require adjudication. On the basis of the averments made in the objection petition, I do not find that any case is made out for considering the objections filed by the petitioners or for providing opportunity to lead evidence. Consequently, both the revision petitions are dismissed. 04.10.2010 (HEMANT GUPTA) Vimal JUDGE 9