ESA No. 2847 of 1986 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH ESA No. 2847 of 1986 (O&M) Date of decision : 7.9.2011 ... Shiv Lal Singh and others ................Appellants vs. Birbal and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. M.S. Sethi, Senior Advocate with Sh. Amit Singh, Advocate for the appellants Ms. Savita Tanwar, Advocate for Sh. Vikas Singh, Advocate for the respondents. ... K.C. Puri, J. This is an Execution Second Appeal preferred by the decree holder Shiv Lal Singh and others against the order dated 31.10.1985 passed by Sh. M.S. Lobana, Additional District Judge, Patiala, vide which the appeal preferred by the decree holder – appellants was dismissed on the ground of maintainability. The appellants have also challenged the judgment dated 18.10.1982 passed by Sh. P.C. Suman, PCS, Sub-Judge Ist Class, Patiala, vide which the objection petition filed by the judgment debtors against the execution of the decree dated 29.2.1960 was accepted and execution petition was dismissed. It is pleaded by the objectors that Shiv Lal Singh never took ESA No. 2847 of 1986 -2- the possession of the land. Alleged sale in favour of Puran Singh etc. effected vide sale deed dated 6.6.1973 is illegal. Judgment debtors had already filed a suit against Shiv Lal Singh and Hazara Singh, in which they were restrained from alienating the land vide order order 29.5.1973. The alleged sale deed is in contravention of the injunction order. It is hit by the principle of lis pendens. The decree was never executed and as such question of delivery of possession does not arise. There cannot be any regularization of the possession. The objectors have also pleaded that execution petition is not maintainable because on the one side decree holder has alleged that he has taken over the possession, so the question of execution of decree does not arise. No execution is maintainable for confirming the alleged plea of possession to the decree holder. The execution application is not within limitation. The execution application is defective as the date of decree has not been given in the application. The suit is also pending between the decree holder and the judgment debtors on one side and the on the other side suit has been filed by the decree holder No.2 against the Judgment debotrs. Notice of the objection petition was given to the decree holder, who filed the reply taking the plea that the objection regarding the sale is not maintainable. The decree was finally passed on 13.10.1971 and till then the execution proceedings remained stayed. The decree holder accordingly prayed for dismissal of the objection petition. The Executing Court framed the following issues:- 1. Whether the execution application is within time? OPDH. ESA No. 2847 of 1986 -3- 2. Whether Shiv Lal Singh, decree holder had already taken possession of the decreed land of his share? If so, to what affect? OPDH. 3. Whether Shiv Lal Singh, decree holder sold the land mentioned in para 3 of the execution application to Puran Chand and others and delivered possession therefore to the vendees? If so, what is its effect? OPDH 4. Whether the alleged sale is illegal on the grounds mentioned in para 3 of the objection petition? OPJD 5. Is the execution application not maintainable as alleged by the contesting judgment debtors? OPJD 5A Whether the land as described in the application was allotted in lieu of the land regarding which the decree was passed? OPJD. 6. Relief. The decree holder vide his application dated 13.9.1975 before the Executing Court did not press the relief of confirmation and regularization of possession allegedly taken outside the Court, which was allowed vide order dated 15.10.1976. The learned Executing Court observed that issue No.2 on that account has become redundant. Learned Executing Court returned the finding on issue No.1 in favour of the decree holder holding that execution petition is within limitation. Issues No. 3 and 4 were decided against the decree holder. Issues No. 5 and 5-A were decided in favour of judgment debtor/objectors and against the decree holder. Consequently, the ESA No. 2847 of 1986 -4- objection petition was accepted and the execution petition was dismissed vide order dated 18.10.1982. Feeling dissatisfied with the above said judgment dated 18.10.1982 passed by Sh. P.C. Suman, PCS, Sub Judge Ist Class, Patiala, the decree holder filed an appeal. The said appeal was dismissed vide judgment dated 31.10.1985 passed by Sh. M.S. Lobana, Additional District Judge, Patiala, holding that the appeal is not maintainable. The judgment dated 31.10.1985 passed by Sh. M.S. Lobana, Additional District Judge, Patiala and order dated 18.10.1982 passed by Sh. P.C. Suman, PCS, Sub Judge Ist Class, Patiala, have been challenged in the present execution second appeal. During the pendency of the execution second appeal an application under Order 41 Rule 27 CPC for placing on record the certified copy of revenue record/jamabandis was also filed. I have heard counsel for both the sides and have also gone through the record of the case. The Executing Court has dismissed the execution petition on the ground that the decree holder has failed to prove the fact that land regarding which possession has been sought was allotted in lieu of the land covered by the decree which is being executed. The Executing Court has observed that jamabandis prior to the consolidation proceedings have not been placed. The appellant has sought to produce the jamabandis prior to consolidation and other relevant documents to prove the fact that the land covered by the execution petition is the same as that of the land covered by the ESA No. 2847 of 1986 -5- decree. The approach of the Executing Court in this regard is against facts and law. Various documents have been produced on the file including DH/1 to DH/9 but the Executing Court has not shown even an ordinary courtesy to deal with those documents. The decree of joint possession was passed in favour of the decree holder Shiv Lal Singh on 29.2.1960. The appeal preferred by the judgment debtors was dismissed on 23.1.1961. The regular second appeal filed by the judgment debtors was dismissed by this Court vide judgment dated 13.10.1971. No doubt, the decree holder has to prove the fact that suit land was allotted in lieu of the land covered by the decree dated 29.2.1960, but the fact remains that the Executing Court has not tried to find out whether the land covered by the decree is the same for which joint possession has been sought. The Executing Court has observed that since the sale deed dated 6.6.1973 executed by Shiv Lal Singh regarding portion of land in favour of Puran Chand etc. has not been produced and the same has been executed during the pendency of injunction suit preferred by the judgment debtors against the decree holder and as such the same is invalid. That approach of the learned Executing Court is erroneous. Shiv Lal Singh has been held as owner to the extent of 1/3rd share of the property mentioned in the judgment and decree dated 29.2.1960. The matter regarding ownership of the same has become final between the decree holder and judgment debtors. The decree holder has every right to alienate the land of his ownership in favour of Puran Chand and that sale deed cannot be said to be invalid merely due to the pendency of the injunction suit. Once the decree holder has ESA No. 2847 of 1986 -6- been held as owner of 1/3rd share of the land mentioned in the decree, the judgment debtors cannot agitate regarding his ownership. So, the finding of the Executing Court on issues No. 3 and 4 are also erroneous and stand set aside. So far as finding of the learned Executing Court to the effect that decree is for joint possession of 1/3rd share and on that account actual possession cannot be taken, is concerned, counsel for the appellants during the course of arguments has submitted that appellants pray for symbolic possession of land. Learned counsel for the respondents has submitted that execution petition is time barred. The decree is dated 29.2.1960 and execution application was filed on 14.8.1983 beyond the period of 12 years and as such the same is time barred. The judgment dated 29.2.1960 passed by Executing Court and judgment dated 3.1.1961 passed by Ist Appellate Court merge in judgment dated 13.10.1971. So, judgment of both the Courts below merged in the judgment of the High Court and as such it cannot be said that petition is not within limitation. The Ist Appellate Court has not adjudicated the matter and has simply dismissed the appeal on the ground that the same is not maintainable. This approach of the Ist Appellate Court cannot be accepted. The rights of the parties should have been decided by the Ist Appellate Court. However, since in the present case, the material question for determination is whether the land for which symbolic possession has been sought is the same and is covered by the decree dated 29.2.1960. So in these circumstances, the finding of the ESA No. 2847 of 1986 -7- Executing Court on all the issues stand set aside and the case is remanded back to the Executing Court to decide the issues fresh after affording the appellants opportunity to produce the evidence. The appellant – decree holder may produce all the evidence sought to be produce by way of additional evidence or any other evidence, which he deems fit. Needless to say that the judgment debtors/objectors would be given right to rebut that evidence. Consequently, the execution second appeal stands accepted and the orders dated 31.10.1985 and 18.10.1982 stand set aside and the case is remained back to the Executing Court to decide afresh in the light of observations made above. Parties are directed to appear before the Executing Court on 14.10.2011. Since the execution is of the year 1973, the Executing Court shall try to decide the objection petition expeditiously preferably within 4 months from the appearance of the parties before the Executing Court. ( K.C. Puri ) 7.9.2011 Judge chugh