C.R. 6830 of 2008 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. 6830 of 2008 Date of decision:- 28.10.2009 Jawala Singh and another petitioner vs Kartar Singh and another. Respondent Present: Mr. PS Dhaliwal, Advocate Mr. KS Boparai, Advocate 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? M.M.S.BEDI,J. The plaintiff- petitioners had filed a suit for declaration and permanent injunction against the defendant-respondents as well as some other defendants. The defendant- respondents had raised a counter claim seeking possession of the property in dispute from the plaintiffs. The trial court vide order dated 12.12.2000 dismissed the suit of the plaintiff- petitioners but decreed the counter claim of defendants 2 and 3 and ordered that they are entitled to the possession of the property in dispute from the plaintiff- petitioners. This is how the plaintiff- petitioners became judgment-debtor in a suit for declaration and permanent injunction filed by them. When the defendant-decree holders of counter claim filed an execution application, the objection was raised by the plaintiff- petitioners that they being purchasers from a co-sharer of the decree holder- defendants cannot be dispossessed though only symbolic possession C.R. 6830 of 2008 2 could be ordered to be delivered to the decree holders, which would subject to partition. In this respect they had filed an application dated 5.3.2008, copy of which has been placed on record as Annexure P-2. The executing court vide order dated 9.5.2008 had ordered the issuance of warrants of symbolic possession for 26.5.2008 against the petitioners. Vide order dated 27.5.2008 the executing court observed that warrants of symbolic possession stood executed. Thereafter, the case was adjourned for 12.6.2008 for statement of the decree holder. From order dated 12.6.2008 it is apparent that some application for amendment of order dated 9.5.2008 was moved. The trial court had adjourned the said application for 11.8.2008 for filing of the reply. As the Presiding Officer was on leave on 11.8.2008, he had adjourned the case for 11.9.2008 by taking up the file on 16.8.2008. On 11.9.2008 one lined impugned order was passed, which reads as follows:- “Heard. In view of the application, warrants of possession are ordered to be issued for 12.12.2008.” A perusal of the interim orders, passed by the executing court, indicates that after the execution of the warrants of symbolic possession against the petitioners, another warrant of possession was issued for delivery of actual physical possession without recalling the earlier order. The executing court is required to determine all questions relating to right, title or interest in the property arising between the parties to the proceedings. The one lined order passed by the executing court, reviewing its earlier order, which stood already executed for delivery of symbolic possession, is apparently a non speaking order without indicating as to under what circumstances, the executing court had passed a second order for execution contrary to the earlier order. Learned counsel for the respondent-decree holders has C.R. 6830 of 2008 3 submitted that the respondents are entitled to take the actual physical possession. All the pleas in support of the said contention can be raised before the executing court. Learned counsel has further argued that even the title acquired is not proper, as such the plea that the petitioners are co- sharers is not available to them. In view of the above, the revision petition is allowed, order dated 11.9.2008 is hereby set aside and the executing court is directed to reconsider the claim of the parties whether the warrants for delivery of actual physical possession deserves to be passed against the petitioners or the circumstances require that delivery of symbolic possession would suffice. It is made clear that after hearing both the parties, it will be open to the executing court to either issue warrants for delivery of actual physical possession or symbolic possession in whole or part of the property. Learned counsel for the respondents has raised certain points, which are considered to be immaterial for adjudication of the present revision petition. This court has opted to exercise the inherent and supervisory power under Article 227 of the Constitution of India in view of the patent illegality committed by the executing court. However, it is observed that any order passed by the executing court, determining the right, title or interest of the parties can be challenged in an appeal as per Order 21 Rule 103 CPC. The parties are directed to appear before the executing court on the date, already fixed and in case no date is fixed, the parties will appear before the executing court on 21.11.2009. October 28 ,2009 (M.M.S.BEDI) TSM JUDGE