CR No.1947- 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 16.2.2010 Navodaya Vidayala Samiti ...Petitioner VERSUS Shamsher Singh & Others …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.DR Sharma, Advocate for the petitioner Mr.ML Saini, Advocate for respondents. Permod Kohli, J. (Oral) This revision is directed against the order dated 4.2.1998 passed by the Additional Civil Judge, Sangrur dismissing an application of the objector- petitioner under Order 21 Rules 97 to 99 CPC. Briefly stated the facts of the case are that the petitioner herein i.e. Navodaya Vidayalaya Samiti is a society registered under the Societies Registration Act. Land measuring 153 kanals and 18 marlas was transferred in favour of the petitioner by the Municipal Committee, Longowal for establishment of school. The possession of the land was also delivered and the Navodaya Vidyalaya Samiti established a school thereon by raising construction. Some of the land holders filed Suit CR No.1947- 1998 2 NO.3-A of 4.1.1990 for possession in the Court of Sub Judge 1st Class, Sangrur in respect of this land. In the aforesaid suit, the Society was not impleaded as a party. The suit was filed against the Union of India, State of Punjab and Municipal Committee, Longowal. The suit was decreed ex- parte vide judgment and decree dated 30.5.1995. It has come in the judgment passed by the Civil Court that the possession of the land is with the Navodaya Vidayalaya, Longowal. Despite this fact having come on the record of the court, the plaintiff chose not to implead the Navodaya Vidayalaya as party-defendant in the suit and obtained an ex-parte decree. While the decree was being executed, the petitioner-society filed an application primarily under Order 21 rules 97 to 99 CPC objecting to the execution and taking possession from the society in respect of the land measuring 153 kanals 18 marls. This application has been rejected by the executing court vide the impugned order dated 4.2.1998. The trial court has observed that the Municipal Committee was not competent to transfer the land to the Navodaya Vidayalya, Longowal. It has also been held that court is under no obligation to frame issue in every case. The Court, however, held that if the Objector considers the judgment-debtor no.1 as its parent body, then decree has attained finality and the petitioner has no locus and if he considers his position to be that of third party, then before raising the objection, he will have to surrender the possession. These observations have been made by the executing court without any basis and on mis-construction of the facts on record. It is admitted case of the petitioner and even noticed in the impugned order that the petitioner is a Society registered under the Societies Act. It is thus an independent body and not a department of judgment debtor no.1 i.e. Union of India. Under CR No.1947- 1998 3 what circumstances, the Court has returned a finding that the third party is required to surrender possession is not evident from the impugned order. No rule or law has been referred to in this regard. Even learned counsel for the respondents has not been able to show any law which requires the third party in possession to first surrender the possession to contest the objections. In view of the above, the order of the trial court is not sustainable in law. The findings of the Executing Court to the extent that no issue was required to be framed are also not in consonance with law, particularly, in view of the facts and circumstances of the present case. The Society claims its independent right on the basis of a transfer deed. It was obligatory upon the Executing Court to have conducted an enquiry and allowed the applicant to lead evidence at least to establish his right over the property. That having not been done, the findings are liable to be set aside. In view of the above, this revision is allowed. The impugned order is hereby set aside. The matter is remitted back to the Executing Court. The Executing Court shall hold an enquiry into the objections filed by the petitioner, in accordance with law and permit the petitioner to lead evidence to establish its right over the suit property. Parties to appear before the Executing Court on 19.4.2010. (PERMOD KOHLI) JUDGE 16.2.2010 MFK