RSA No.4270 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4270 of 2008 Date of Decision: 29.04.2009 Ishar Singh ..Appellant Vs. Ram Singh & Anr. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.G.S.Gandhi, Advocate, for the appellant. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgment and decree dated 31.7.2008 passed by the learned courts below vide which the suit filed by the plaintiff/appellant for declaration that the Haveli fully detailed in the head-note of the plaint was under the ownership and RSA No.4270 of 2008 2 possession of the plaintiff and that the defendants had no right to interfere with possession of the same. Defendant No.1 who is the son of the plaintiff/appellant chose not to appear. Defendant No.2 the decree holder against defendant No.1 got himself impleaded as defendant No.2 and filed written statement. The plea taken was that defendant No.1 was owner of half share and that the suit property was in joint possession. Plea was also raised that execution petition was pending in the court of learned Civil Judge (Sr. Division), Narnaul in which suit property was got attached to the extent of half share of Ram Singh, defendant No.1 and the room which was given to the plaintiff was apart from the attached property. Suit was for the recovery of Rs.60,000/- which was not paid. It was pleaded that the suit was not maintainable because the plaintiff/appellant had filed objections before the executing court and that the plaintiff and defendant No.1 being father and son were in collusion with each other. Learned trial court was pleased to frame the following issues:- 1. Whether the plaintiff is owner in possession of the suit property? OPP 2. Whether the suit is not maintainable in view of the fact that objection petition is pending in the Executing Court? OPD 3. Relief. Issue No.2 was treated as preliminary issue and the parties were RSA No.4270 of 2008 3 allowed to adduce documentary evidence in support of their claim. Learned trial court held that the objection petition filed by the plaintiff was decided by the learned Executing Court on 20.7.2005 and the objections were partly allowed. It was admitted by the plaintiff/appellant during the course of arguments that the subject-matter of the objection petition as well as of the suit were the same. The learned court also noticed that the plaintiff was not party to the decree which was sought to be executed and the only question, therefore, was whether the suit was hit by provisions of Order 21 Rule 101 of the Code of Civil Procedure (for short the Code) which lay down that the question relating to right, title or interest in the property is to be determined by the executing court and not by way of separate suit. Rights of third party/objector are to be dealt with under Order 21 Rule 99 of the Code. The learned court placed reliance on the judgment in the case of Prasantha Banerji Vs. Pushpa Ashoke Chandani & Ors. 2001 (1) PLJ 136, wherein it has been held that after initiation of execution proceedings suit by third party for the same property is not maintainable and the remedy is to file objections in the execution proceedings which the plaintiff has already availed, thus, the learned court rightly held that filing of the suit was misuse of the process of the court and consequently decided issue No.2 against the plaintiff/appellant and dismissed the suit. The finding recorded by the learned trial court stands affirmed by the learned lower appellate court. Mr.G.S.Gandhi, learned counsel appearing on behalf of the appellant contends that in the appeal following substantial questions of law RSA No.4270 of 2008 4 arise for consideration by this court:- 1. Whether the judgment and decree passed by the learned courts below is the result of misreading of pleadings, thus perverse? 2. Whether the preliminary issue can be framed for adjudication of an issue which is proved on facts by evidence? 3. Whether there was collusion between defendants No.1 and 2? In support of the substantial questions of law learned counsel for the appellant contends that the suit filed by the plaintiff/appellant was against defendant No.1 seeking injunction from interfering in his possession. The learned courts below completely misread the pleadings to hold that the suit framed was not maintainable. However, this plea of the learned counsel for the appellant cannot be accepted. The plaintiff/appellant categorically admitted that the plea raised in the suit was the same, as the one raised, in the objections filed in the execution proceedings, which already stood decided. Learned courts below,therefore, rightly relied upon the judgment of Hon'ble Supreme Court in the case of Prasantha Banerji Vs. Pushpa Ashoke Chandani & Ors (supra), wherein Hon'ble Supreme Court has been pleased to lay down that after initiation of execution proceedings in respect of the property the suit regarding same property by a person not a party to decree is not maintainable and the remedy is in execution proceedings, which the RSA No.4270 of 2008 5 plaintiff has already availed. In view of the judgment of Hon'ble Supreme Court, the judgment relied upon by the learned counsel for the appellant of Hon'ble Allahabad High Court in the case of Harilal Yadav Vs. Ghanshyam Shukla & Anr. 2006 (2) Civ.C.C.435, is of no help. Similarly reliance on the judgment of this court in the case of Jain Parkash Jain Vs. Diali Ram 1991 (2) RRR 286 is of no help. Hon'ble Supreme Court in the case of Ashan Devi and Anr. Vs. Phulwasi Devi and Ors. 2004 (1) RCR (Civil) 38 has been pleased to hold that a person can seek adjudication of his right and title by moving an application under Order 21 Rule 99 of the Code to the Executing Court and seeking adjudication of his right and title in accordance with Order 21 Rule 101 of the Code and the separate suit claiming title is not required to be filed. Hon'ble Supreme Court has been pleased to lay down that third party's claim regarding ownership can be adjudicated by the Executing court under the provisions of Order 21 Rule 97 and 99 of the Code. No fault can be found with the judgment and decree passed by the learned courts below. The first substantial question of law, therefore, is answered against the appellant. On the second substantial question of law learned counsel for the appellant placed reliance on the judgment of Hon'ble Supreme Court in the case of Ramesh B.Desai and Ors. Vs. Bipin Vadilal Mehta and Ors 2008 (1) RCR (Civil) 921 to contend that issue No.2 framed could not be treated to be a preliminary issue as it was a mixed question of law and facts. RSA No.4270 of 2008 6 This plea of the learned counsel for the appellant cannot be accepted. Hon'ble Supreme Court in the case of Ramesh B.Desai and Ors. Vs. Bipin Vadilal Mehta and Ors (supra) has been pleased to lay down that a plea of limitation being mixed question of law and fact cannot be treated as preliminary issue unless it becomes apparent from the reading of the plaint that the same is barred by limitation. Hon'ble Supreme Court has further been pleased to lay down that where decision of an issue depends upon the decision of fact it cannot be treated as a preliminary issue. In the present case it was not a question of fact but maintainability of the suit in view of the filing of objection petition on the same facts which already stood adjudicated between the parties. Order 14 Rule 2 of the Code reads as under:- “ORDER XIV - SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON ISSUES OF LAW OR ON ISSUES AGREED UPON (THE FIRST SCHEDULE) 1. Framing of issues XX XX XX 2. Court to pronounce judgment on all issues (1) Notwithstanding that a case may be disposed of on preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first RSA No.4270 of 2008 7 if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.” From a perusal of the above provisions, it is clear that issue with regard to the jurisdiction or qua the bar to the suit created by any law for the time being in force can be treated as a preliminary issue in case the suit can be decided on the said issue. In the present case in view of the provisions of Order 21 Rules 99 and 101 of the Code, separate suit is barred and therefore, there was a bar by the statute and thus, no fault can be found with the judgment and decree of the learned courts below in treating issue No.2 to be preliminary issue. Thus, finding no merit in the present appeal it is ordered to be dismissed in limine. 29.04.2009 (Vinod K.Sharma) rp Judge