IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.11149 of 2009 and CWP No. 2201 of 2008 Date of decision : 23.11.2009 Harbhajan Singh and Others ….. Petitioners Versus The State of Punjab and Others ….. Respondents Present: Mr. G.S. Sirphikhi, Advocate for the petitioners. Mr. H.S. Gill, DAG, Punjab for respondents No.1 and 2. Mr. R.N. Moudgil, Advocate for respondents No.3 to 8. **** S.S. SARON, J. C.M. No.1149 of 2009 The replication to the written statement of respondents No.3 to 7 attached with the C.M. is taken on record subject to just exceptions. C.M. stands disposed of. CWP No.2201 of 2008 The petitioners by way of the present petition under Articles 226/227 of the Constitution of India seek quashing of the order dated 27.11.2007 (Annexure P13) passed by the Sub-Divisional Officer (Civil), Batala (respondent No.2) exercising the powers of Collector under the Redemption of Mortgages (Punjab) Act, 1913 (“Act” – for short) vide which the warrants of possession issued by him have been withdrawn and the application of the petitioners for execution of the order dated 24.1.2005 (Annexure P4) has been CM No.11149 of 2009 and [2] CWP No. 2201 of 2008 adjourned sine die. A further prayer has been made for directing the Sub-Divisional Officer (Civil), Batala exercising the powers of Collector under the Act to execute the order dated 24.1.2005 (Annexure P4). Piara Singh father of the petitioners had mortgaged land measuring 5 kanals 11 marlas which was part of his share comprised in Khasra No.12R/22/1 min. (2-16) and 20R/2(2-15) towards North situated in village Bohja, Tehsil Batala, District Gurdaspur in favour of respondents No.3 to 6 and Kuldip Singh son of Makhan Singh now represented by his widow Lakhbir Kaur (respondent No.7) and son Kuljit Singh (respondent No.8) for Rs.5,000/- vide registered mortgage deed dated 1.3.1979 (Annexure P2). In terms of the said deed, it was agreed that the mortgagor would have the right to get the land redeemed from the mortgagees on payment of Rs.5,000/- at any time after a lapse of a period of three years. The father of the petitioners died in October, 2000 and his estate was inherited by the petitioners. On 31.3.2004, the petitioners filed an application (Annexure P3) under Section 4 of the Act seeking possession of the aforesaid land by redemption of the mortgage. The said application of the petitioners was allowed by the Collector, Batala vide order dated 24.1.2005 (Annexure P4). The petitioners deposited the mortgaged amount which was ordered to be given to the respondents on making an application for the same. The mortgagees on 28.1.2005 filed an application for review of the order dated 24.1.2005 (Annexure P4). The said application was dismissed by the learned Collector vide order dated 11.6.2007 (Annexure P5). It was observed that the Court has no power of review under the Act and that the CM No.11149 of 2009 and [3] CWP No. 2201 of 2008 remedy of the party was to file a civil suit. Respondents No.3 to 8 along with Makhan Singh i.e. father of respondents No.3 to 6 on 23.12.2005 filed a suit seeking declaration to the effect that the order of redemption dated 24.1.2005 (Annexure P4) passed by the Collector, Batala (respondent No.2) ordering redemption of land measuring 5 kanals 11 marlas on payment of Rs.5,000/- was void, illegal, erroneous, ultra vires and nullity in the eyes of law and as such not binding on the plaintiffs (respondents No.3 to 8 as also Makhan Singh father of respondents No.3 to 6). A consequential relief of permanent injunction restraining the defendants (now petitioners) as also Hardeep Singh son of Piara Singh, Smt. Jagir Kaur widow of Piara Singh, Smt. Bhajni daughter of Piara Singh and Harjeet Singh son of Kuldip Singh) from taking possession of the suit land forcibly, illegally or on the basis of the alleged order dated 24.1.2005 (Annexure P4) was also sought. Alongwith the suit, an application for temporary injunction was also filed. The learned Civil Judge (Junior Division), Batala vide order dated 23.12.2005 (Annexure P6) issued notice in the suit as also on the stay application. In the meantime, the defendants (now petitioners) as also Hardeep Singh, Smt. Jagir Kaur, Smt. Bhajni and Harjeet Singh were restrained from taking possession of the suit land from the plaintiffs (respondents No.3 to 8) illegally, forcibly and except in due course of law. The petitioners on 14.6.2007 filed an application (Annexure P7) for issuance of warrants for the delivery of possession of the land in dispute in the Court of Collector, Batala (respondent No.2). The Collector, Batala (respondent No.2) on 28.6.2007 (Annexure P8) issued warrants of possession and directed the Tehsildar, Batala to CM No.11149 of 2009 and [4] CWP No. 2201 of 2008 deliver possession of the land to the petitioners. In consequence of the warrants of possession, the Tehsildar Batala on 31.7.2007 (Annexure P9) recorded that the warrants cannot be issued as the other party had presented a copy of the stay order. Accordingly, the report was submitted for further proceedings. The petitioners, thereafter, filed an application dated 7.8.2007 (Annexure P10) for redirecting the Patwari Halqa and Kanungo concerned for complying with the order dated 28.6.2007 (Annexure P8) that has been issued by the Collector, Batala by ignoring the stay order dated 23.12.2005 (Annexure P6) of the civil Court. The Collector on the stay application on 7.8.2007 (Annexure P10) recorded that warrants of possession had been issued within the ambit of law and the civil Court had granted stay, “except in due course of law”. It was held that the parties had got the warrants issued after getting the land redeemed as per law. The stay was, therefore, liable to be demanded against the redemption order. Thereafter, on 14.8.2007 (Annexure P11), the Tehsildar, Batala sent a report of the Patwari Halqa and Kanungo concerned to the Collector (respondent No.2) that a stay had been granted by the civil Court and warrants of possession can be executed only after vacation of the stay. The petitioners on 20.8.2007 filed an application (Annexure P12) for calling the Kanungo of Circle Bojha, Tehsil Batala and directing him to bring the stay of the implementation of the order under execution issued by the Court on 28.6.2007 (Annexure P8) and he be also directed to answer why he had not complied with the order dated 7.8.2007 (Annexure P10) and had deliberately given a false report on 14.8.2007 (Annexure P11). On the said application, the Collector on 27.11.2007 passed the CM No.11149 of 2009 and [5] CWP No. 2201 of 2008 impugned order (Annexure P13) withdrawing the warrants of possession by observing that the cultivator of the land as per the Jamabandi placed on record was Makhan Singh and there was no mention of the said Makhan Singh in the redemption order. Besides, the civil Court has granted the stay. Accordingly, the execution application was adjourned sine die till final order is passed by the civil Court. Aggrieved against the said order, the petitioners have filed the present petition. Notice of motion was issued in the case. Reply has been filed by respondents No.1 and 2 in which it is stated that the findings of the civil Court are binding on all the concerned parties and the executive Courts. Therefore, by withdrawing the warrants of possession, the Collector had not passed any illegal order. It is, however, accepted that the Collector had allowed the application filed by the petitioners and ordered redemption of the land in their favour on 24.1.2005 (Annexure P4). The review of the order dated 24.1.2005 was also dismissed on 11.6.2007 (Annexure P5). It was held that the Collector has no power to review. In the reply filed by respondents No.3 to 7 it is stated that the determination of certain complicated facts is required to be made in the case which can only be done after the parties bring on record their respective evidence and its appreciation is done by the competent Courts. It is submitted that the matter is already subjudice in the Court of Civil Judge, Batala in civil suit No.544 of 23.12.2005. In the said suit, the order dated 24.1.2005 (Annexure P4) of the Collector is under challenge. The said order of redemption, it is stated, is assailed as void, illegal and erroneous; besides, being ultra CM No.11149 of 2009 and [6] CWP No. 2201 of 2008 vires and a nullity in the eyes of law and as such not binding on respondents No.3 to 7. It is stated that a competent civil Court has granted stay on 23.12.2005 (Annexure P6) and the said order is continuing and is operative. The order dated 24.1.2005 (Annexure P4), it is stated, is bad in itself and that is why the same is under challenge in the civil suit which has granted stay. The execution matters, it is submitted, cannot be challenged by way of a writ petition under Articles 226/227 of the Constitution of India. Learned counsel for the petitioners has contented that the order of stay dated 23.12.2005 (Annexure P6) passed by the civil Court only restricts taking the possession of the suit land from the plaintiffs (now respondents No.3 to 8) illegally, forcibly and except in due course of law. Therefore, it is submitted that the action of the Collector in passing the impugned order dated 27.11.2007 (Annexure P13) on the ground that the matter has been stayed by the civil Court is unsustainable and is liable to be set aside and quashed and the Collector is liable to proceed in accordance with law. Insofar as Makhan Singh being shown as cultivator is concerned, it is submitted that Makhan Singh is the father of respondents No.3 to 7 and otherwise Pal Singh is the mortgagee and the mortgage deed dated 1.3.1979 (Annexure P2) was executed in favour of Pal Singh, Hari Singh, Kuldeep Singh, Sarabjit Singh and Gurmeet Singh sons of Makhan Singh son of Malla Singh. Therefore, the fact that Makhan Singh is shown in cultivating possession, it is submitted, is inconsequential. It is further submitted that as per the report dated 14.8.2007 (Annexure P11), the resistance to the execution is created by Pal Singh only who is the son of Makhan Singh. CM No.11149 of 2009 and [7] CWP No. 2201 of 2008 In response, learned counsel appearing for the State has submitted that the Collector under the Act is only to comply with the order of the civil Court granting stay and therefore, there is no infirmity in the order dated 27.11.2007 (Annexure P13) passed by the Collector. Learned counsel for respondents No.3 to 7 has submitted that the matter is subjudice before the civil Court which has passed a valid order dated 23.12.2005 (Annexure P6) of stay. It is submitted that the order of redemption dated 24.1.2005 (Annexure P4) itself is under-challenge and therefore, the stay granted is rightly being followed by the Collector under the Act in terms of order dated 27.11.2007 (Annexure P13). It is also submitted that against the order declining to execute the warrants of possession, a writ petition is not maintainable and the order dated 27.11.2007 (Annexure P13) was liable to be challenged by the petitioners before the higher revenue authorities. Besides, the petitioners were liable to file an application for vacation of stay granted by the civil Court order dated 23.12.2005 (Annexure P6) or file an appeal against the same in the Court of District Judge, Gurdaspur. I have given my thoughtful consideration to the contentions of the learned counsel appearing for the parties and with their assistance gone through the records of the case. The father of the petitioners namely Piara Singh had mortgaged with possession his land measuring 5 kanals 11 marlas out of the land measuring 10 kanals which was joint in ownership with his brother Chanan Singh in favour of Pal Singh, Hari Singh, Kuldeep Singh, Sarabjit Singh and Gurmeet Singh sons of Makhan Singh vide mortgage deed dated CM No.11149 of 2009 and [8] CWP No. 2201 of 2008 1.3.1979 (Annexure P2). In terms of the said deed, it was agreed that the land has been given on the condition that after expiry of three years, the mortgagor after paying the entire mortgaged amount would have the right to get the land redeemed. The mortgagor Pal Singh died in the month of October, 2000 and his estate was inherited by the petitioners being the sons of Piara Singh. They filed an application dated 31.3.2004 (Annexure P3) seeking possession by redemption of the land in question. The application of the petitioners was allowed by the Collector, Batala vide order dated 24.1.2005 (Annexure P4). Respondents No.3 to 8 filed an application for review of the order dated 24.1.2005 (Annexure P4) ordering redemption of the land. The said application for review was dismissed by the Collector, Batala vide order dated 11.6.2007 (Annexure P5). It was held that the Collector has no power to review the order and remedy for the aggrieved party was the civil Court. Respondents No.3 to 8 filed a civil suit on 23.12.2005 (Annexure P6) seeking declaration to the effect that the order of redemption dated 24.1.2005 (Annexure P4) passed by the Collector was void and illegal. They also prayed for consequential relief of permanent injunction restraining the defendants (now petitioners) from taking possession of the suit land from the plaintiffs (now respondents No.3 to 8) forcibly, illegally or on the basis of the alleged order dated 24.1.2005 (Annexure P4). Along with the suit, an application for temporary injunction was also filed. The learned Civil Judge (Junior Division), Batala vide order dated 23.12.2005 (Annexure P6) issued notice in the suit as also on the stay application. In the meantime, the defendants (now petitioners) were ordered to be restrained from taking the possession CM No.11149 of 2009 and [9] CWP No. 2201 of 2008 of the suit land from the plaintiffs (respondents No.3 to 8) illegally, forcibly and except in due course of law. The petitioners thereafter filed an application dated 14.6.2007 (Annexure P7) seeking issuance of warrants for the delivery of possession of the land in dispute in the Court of Collector (respondent No.2). The Collector, Batala (respondent No.2) on 28.6.2007 (Annexure P8) issued warrants of possession and directed the Tehsildar, Batala to deliver the possession of the land to the petitioners. In consequence of the warrants of possession, the Tehsildar Batala on 31.7.2007 (Annexure P9) recorded that the warrants cannot be issued as the other party had presented a copy of the stay order. Accordingly, a report was submitted for further proceedings. The petitioners then filed an application dated 7.8.2007 (Annexure P10) for redirecting the Patwari Halqa and Kanungo concerned for complying with the order dated 28.6.2007 (Annexure P8) by which warrants of possession were issued by the Collector, Batala by ignoring the stay order of the civil Court dated 23.12.2005 (Annexure P6). The Collector on the stay application on 7.8.2007 (Annexure P10) observed that warrants of possession had been issued within the ambit of law and the civil Court had granted stay except in due course of law. It was held that the parties had got the warrants issued after getting the land redeemed as per law and that the stay was liable to demanded against the redemption order. Thereafter, on 14.8.2007 (Annexure P11), the Tehsildar, Batala sent a report of the Patwari Halqa and Kanungo concerned to the Collector (respondent No.2) that stay had been granted by the civil Court and warrants of possession can be executed only after the stay is vacated. The petitioners on 20.8.2007 filed an CM No.11149 of 2009 and [10] CWP No. 2201 of 2008 application (Annexure P12) for calling the Kanungo of Circle Bojha, Tehsil Batala with a direction to bring with him the stay of the implementation of the order under execution issued by the Court on 28.6.2007 (Annexure P8) and he be also directed to answer why he has not complied with the order dated 7.8.2007 (Annexure P10) and had deliberately given a false report on 14.8.2007 (Annexure P11). On the said application, the Collector on 27.11.2007 passed the impugned order (Annexure P13) withdrawing the warrants of possession as the cultivator was Makhan Singh as per the Jamabandi placed on record and there was no mention of the said Makhan Singh in the redemption order. Besides, civil Court has also granted the stay. The order of redemption has been validly passed on 24.1.2005 (Annexure P4). The said order is subject matter of challenge in the civil suit filed by respondents No.3 to 8. Insofar as the stay is concerned, the learned Civil Judge (Junior Division), Batala vide order dated 23.12.2005 (Annexure P6) has restrained the defendants (now petitioners) from taking possession of the suit land from the plaintiffs illegally, forcibly and except in due course of law. This Court in the case of Suraj Bhan v. Smt. Chander Kanta, 1998 (3) PLR 315, in a case relating to proceedings under the Redemption of Mortgages (Punjab) Act, 1913, observed that where the defendants had taken up proceedings under the Act before the revenue authorities in accordance with law for taking possession of the land mortgaged with the plaintiff, the civil court would not interfere with the proceedings going on before the revenue Courts by grant of injunction thereby curtailing the right of the defendants. CM No.11149 of 2009 and [11] CWP No. 2201 of 2008 Steps taken in the proceedings before the revenue Courts in accordance with the law do not cause any injury to any party. Reliance was placed on the case of Madan Lal and others v. Dil Singh, 1982 PLR 63 wherein it was held that when a person is taking possession in accordance with law then it is improper to attract Order 39 Rule 1 of the Code of Civil Procedure. The following observations in the said case which are apposite were noticed :- “------ obviously, by pursuing the suit for ejectment, the vendees were neither threatening to dispossess the plaintiff nor to cause an injury to him in relation to the suit property because the threat or the injury necessarily implies the commission of a wrongful act. When a person pursues his legal remedy in a Court of law, may be to eject the plaintiff, he cannot, by any stretch of reasoning be said to threaten to dispossess or cause injury to the plaintiff in relation to the suit property. The learned counsel for the respondent also did not seriously dispute this proposition and, therefore, laid stress mainly on the inherent powers of the courts under Section 151, Civil Procedure Code.” In the case of Piare lal and another v. Babu Singh and Others, 1990 PLJ 61 it was held that defendants should not be CM No.11149 of 2009 and [12] CWP No. 2201 of 2008 restrained from executing a decree passed in the favour by the revenue Courts. The finding recorded in the said case are as follows:- “After hearing the learned counsel for the parties, I am of the considered opinion that the whole approach of the lower appellate Court in this behalf was wrong and illegal and that it acted illegally and with material irregularity in the exercise of its jurisdiction. The defendants could not be restrained from executing the decree passed in their favour by the revenue Court. The trial Court rightly observed that the present suit is a clever device to keep possession of their father intact over the property of which he is ordered to be ejected by the revenue Courts.” In terms of the order dated 23.12.2005 (Annexure P6) passed by the learned Civil Judge (Junior Division), Batala, the defendants (now petitioners) have only been restrained from taking possession of the suit land from the plaintiffs illegally, forcibly and except in due course of law. The possession, however, is being taken in consequence of the order dated 24.1.2005 (Annexure P4) as also the warrants of possession dated 28.6.2007 (Annexure P8). Therefore, it cannot be said that the possession is being taken illegally or forcibly. In fact it is being taken in due course of law. The initial order passed by the Collector on 7.8.2007 (Annexure P10) in fact reflected the correct position that the civil Court had written in the CM No.11149 of 2009 and [13] CWP No. 2201 of 2008 stay ‘except in due course of law’ and that the parties had got the warrants issued after getting the land redeemed as per the law. However, the Collector, Batala clearly erred in passing the order dated 27.11.2007 (Annexure P13) whereby an observation has been made that the civil Court had granted the stay. The stay of the civil Court is against taking possession forcibly or illegally and otherwise than in due course of law and not in accordance with law. The possession is indeed being taken in due course of law. Therefore, it cannot be said that the civil Court order dated 23.12.2005 (Annexure P6) would in any manner come in the way of taking possession in accordance with law. Insofar as the objection of the learned counsel for respondents No.3 to 8 that a challenge has been made to the order dated 24.1.2005 (Annexure P4) is concerned, it may be noticed that the civil Court has not stayed the operation, implementation, execution or effect of the order dated 24.1.2005 (Annexure P4). It has only restrained the defendants from taking possession otherwise than in due course of law. In case the suit of respondents No.3 to 8 is decreed in their favour, they would have their remedy of seeking restitution of possession under Section 144 of the Code of Civil Procedure. However, merely because a suit has been filed for assailing the order dated 24.1.2005 (Annexure P4) passed by the Collector, it cannot be said that the operation, execution and implementation of the said order is also automatically stayed. The other contention of the learned counsel for the respondents that the petitioners have other remedies before the higher revenue authorities is also without merit. The order dated 24.1.2005 CM No.11149 of 2009 and [14] CWP No. 2201 of 2008 (Annexure P4) has been passed under the Act and the order passed by the Collector does not provide for any review or revision. Insofar as the execution of the decree is concerned, the provisions of the said Act and the Rules thereunder provide that the provisions of Sections 79, 85, 86, 87, 89, 90, 91, 92 and 101 of the Punjab Tenancy Act, 1887 are to apply as far as may be to all proceedings under the Act. In the matter of orders of ejectment and delivery of possession of immovable property, it has been provided under Rule 10 (i) of the Punjab Tenancy Rules, 1909 relating to procedure of revenue officers that the same are enforceable in the manner provided in the Code of Civil Procedure for the time being in force in respect of the execution of a decree whereby a civil Court adjudged ejectment from, or delivery of possession of such property. It is not shown by the learned counsel for the respondents No.3 to 8 as to which procedure under the Punjab Land Revenue Act would be applicable in respect of which oder that can be assailed. In the Code of Civil Procedure, the remedy against an order of the executing Court where no appeal is provided, is by way of a revision in this Court. The present petition having been filed under Articles 226/227 of the Constitution of India is merely the form as it would be inconsequential in the facts and circumstance whether this Court has the jurisdiction, to entertain such a petition against the order of the Collector whereby in execution of the order has been adjourned sine die. Therefore, the said objection of the learned counsel appearing for the respondents is also devoid of merit. The fact that Makhan Singh is recorded as mortgagee in the revenue records as observed by the Collector in his order dated