Civil Revision No. 3986 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 3986 of 2008 (O&M) Date of decision : December 23, 2009 Subhash Chander ....Petitioner versus M/s Rare Tyres Traders and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Karan Nehra, Advocate for the applicant-petitioners Mr. Harsh Kinra, Advocate, for respondent no. 1 L.N. Mittal, J. (Oral) CM No. 23150.CII of 2009 This is application for impleading legal representatives of Subash Chander petitioner since deceased. It is alleged that wife and son of the deceased petitioner as mentioned in paragraph no. 2 of the application are his only legal heirs. The application is accompanied by affidavit. Accordingly, the application is allowed subject to all just exceptions and the persons mentioned in paragraph no. 2 of the application are brought on record as legal representatives of Subhash Chander petitioner since deceased. Necessary correction in the title of the petition be made by the office. Civil Revision No. 3986 of 2008 (O&M) -2- Civil Revision No. 3986 of 2008 Decree holder has filed this revision petition under Article 227 of the Constitution of India assailing order dated 31.5.2008, Annexure P/6 passed by the executing court i.e. learned Civil Judge (Senior Division), Jagadhri. Kashmiri Lal father of petitioner Subhash Chander (Subhash Chander now deceased and represented by LRs) filed suit for possession and permanent injunction against respondent nos. 2 to 4. The said suit was ultimately decreed by this Court vide order dated 14.3.1977, Annexure P/1, passed in RSA No. 62 of 1967. Operative part thereof is reproduced herein-under:- “Admittedly, the respondents are not the co-sharers of the land in the dispute. It is open to a co-sharer to file a suit for possession against the trespassers and outsiders. In this view of the matters the claim of the appellant should not have been dismissed. I, therefore, allow this appeal and grant a decree of possession in respect of 3 bighas of land which the appellant purchased from Nathu vide sale deed (Exhibit P.2). The respondents are also restrained from construction any building upon this land. No costs.” The petitioner filed execution petition wherein objections were filed by judgment debtors. The said objections were dismissed by executing court vide order dated 31.10.2005. Thereafter respondent no. 1 M/s Rare Tyres Traders through its sole proprietor S.K. Mittal filed objection petition Annexure P/2. Respondent no. 1 was not party to the suit/decree. The said objections were dismissed by the executing court vide Civil Revision No. 3986 of 2008 (O&M) -3- order dated 22.4.2008, Annexure P/3. Soon thereafter, even before the next date of hearing (12.5.2008) fixed by the executing court, respondent no. 1 filed another objection petition Annexure P/4 in the executing court. On the said objection petition, after obtaining reply from the decree holder, the executing court vide impugned order dated 31.5.2008, Annexure P/6 has framed issues for deciding objections raised by respondent no. 1. Feeling aggrieved, the decree holder has filed the instant revision petition. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioner vehemently contended that objection petition Annexure P/2 filed by respondent no. 1 having been dismissed by executing court vide order dated 22.4.2008, another objection petition Annexure P/4 filed by same respondent no. 1 thereafter could not have been entertained by the executing court. There is considerable merit in the contention. Respondent no. 1 raised various objections in his objection petition Annexure P/2. The said objections were dismissed by the executing court vide order dated 22.4.2008, Annexure P/3. Thereafter respondent no. 1 had no right to file fresh objections before the executing court. Learned counsel for respondent no. 1 contended that objection regarding demarcation was not raised in first objection petition, Annexure P/2 and has been raised for the first time in objection petition Annexure P/4 and therefore, second objection petition Annexure P/4 filed by respondent no. 1 has been rightly entertained by the executing court. The contention is totally devoid of merit. Respondent no. 1 should have taken all the objections available to him in first objection petition, Annexure P/2. If Civil Revision No. 3986 of 2008 (O&M) -4- respondent did not raise the objection of demarcation in objection petition, Annexure P/2, respondent no. 1 himself is to be blamed for the same. Respondent no. 1 cannot be permitted to file successive objection petitions. Second objection petition Annexure P/4 filed by respondent no. 1 is barred by principle of constructive resjudicata. Faced with the aforesaid situation, learned counsel for respondent no. 1 contended that respondent no. 1 had preferred Civil Revision No. 2771 of 2008 in this Court against order dated 22.4.2008, Annexure P/3 passed by the executing court whereby first objection petition Annexure P/2 filed by respondent no. 1 was dismissed and the said revision petition filed by respondent no. 1 was dismissed as withdrawn vide order dated 23.7.2008 subject to right of respondent no. 1 to pursue his remedy in the second objection petition Annexure P/4 which was filed much prior to the said order dated 23.7.2008. The contention appears to be attractive on the first blush but is infact completely devoid of merit. Order dated 23.7.2008 passed by this Court in CR No. 2771 of 2008 as shown by learned counsel for respondent no. 1 is reproduced hereunder:- “Counsel for the petitioner says that subsequent to this, the petitioner has filed another objection petition inter-alia seeking direction for demarcation of the property. Seeks permission to withdraw the present revision petition subject to his right to pursue his remedy in the said objection petition. Dismissed as withdrawn with liberty as prayed for.” Perusal of the aforesaid order would reveal that this Court did not hold that second objection petition, Annexure P/4 filed by respondent no. 1, was maintainable. On the other hand, respondent no. 1 was simply Civil Revision No. 3986 of 2008 (O&M) -5- given the right to pursue his remedy in the second objection petition, Annexure P/4. However, in fact, respondent no. 1 had no legal right to file the second objection petition, Annexure P/4, after first objection petition Annexure P/2 filed by respondent no. 1 had already been dismissed by the executing court vide order dated 22.4.2008, Annexure P/3. In view of the aforesaid, I have no hesitation in concluding that the impugned order dated 31.5.2008, Annexure P/6 passed by the executing court is completely illegal and unsustainable because second objection petition Annexure P/4 filed by respondent no. 1 could not be entertained in view of first objection petition filed by respondent no. 1 having been dismissed vide order dated 22.4.2008, Annexure P/3. Accordingly, the instant revision petition is allowed and impugned order dated 31.5.2008, Annexure P/6 passed by executing court is set aside and second objection petition Annexure P/4 filed by respondent no. 1 in the executing court is dismissed. The executing court shall proceed with the execution petition in accordance with law. ( L.N. Mittal ) December 23, 2009 Judge 'dalbir'