ESA No. 3 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ESA No. 3 of 2010(O&M) Date of Decision: January 21 , 2010 Kiran Gupta and others ...... Appellants Versus Satish Kumar and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Rajinder Sharma , Advocate for the appellants. **** 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? Ajay Tewari, J. This appeal has been filed against the order of the learned Lower Appellate Court setting aside that of the Executing Court and thereby dismissing the objections of the appellants. Admittedly the property in dispute was owned by three brothers - Satpal, Amar Nath and Joginder Pal. It was under tenancy of various persons. The three co-owners brought out action for eviction of the appellants in the year 1969. In the year 1995 the eviction order was upheld by the Hon'ble Supreme Court. Thereafter the appellants purchased the share of one of the brothers and under the said sale deeds they are ESA No. 3 of 2010(O&M) 2 purported to have taken over possession of the entire property. Subsequent to that execution was filed by the remaining two decree holders which was sought to be thwarted by the appellants by pleading that they had stepped into the shoes of the one of the decree holders viz. Satpal and thus, being in possession as co-decree holders only a suit for partition would lie. This plea, as noticed above, has been negatived by the Appellate Court by holding that this clandestine and dishonest transaction could not be permitted to prevent the other decree holders from getting the fruit of the decree which they had obtained after almost three decades of litigation. Learned counsel has argued that the decree can be executed only against the JDs or persons claiming under them but the appellants can be classified in neither of these categories and the only remedy for the other co-sharers is to file a suit for partition. In this regard the relevant provisions would be Order 21 Rule 35, 97(2), 98 and 101 CPC. Order 21 Rule 35 lays down that in a decree for delivery of immovable property possession shall be delivered to the party to whom it has been adjudged. Rule 97 mandates that any person who is obstructed can make an application in this regard which shall be disposed of by the Court after discussing all questions relating to right, title or interest (under Rule 101) in the said application and not by a separate suit. Thus, the argument of learned counsel for the appellants that the only remedy for the other co-sharers is to file a suit for partition cannot be accepted. Reliance in this regard may be placed on Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another reported as (1997)3 SCC 694. The alternative argument put forward is that in any case issues would have to be framed and thereafter the matter decided. This case ESA No. 3 of 2010(O&M) 3 presents a classic example of the general admonition which is held out to litigants in India viz. that the problems of a person start after he obtains a decree. The arguments made by learned counsel sound attractive but cannot detract from the fact that the course of action adopted by the appellants and Satpal was designed primarily to gain additional advantage at the cost of the other decree holders. Courts cannot be silent spectators when the process of law is sought to be perverted by such blatant attempts at unfairly depriving co-decree holders of the fruits of their hard earned victory. As regards the alternative argument, the Hon'ble Supreme Court in a three Judges Bench judgement in Silverline Forum Pvt. Ltd. v. Rajiv Trust and another reported as AIR 1998 SC 1754 held as follows:- 'It is clear that Executing Court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed inquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course, the Court can direct the parties to adduce evidence for such determination if the court deems it necessary.” In this case when the appellants purchased the share of one of the co-decree holders, they very well knew that what they had purchased was the right to joint possession. I put it to learned counsel that I would stay handing over the possession to the co-decree holders if the appellants would also consent to give up the possession and then have the property ESA No. 3 of 2010(O&M) 4 partitioned by metes and bounds as prayed for by the appellants in a time bound trial. However, learned counsel for the appellants states that he is not in a position to make this fair concession. In the circumstances the respondents are entitled to be put in joint possession with the appellants which would necessarily mean that they would be entitled to put their own locks on the property till such time as any proceedings for partition which may be initiated are finalised. In these circumstances this appeal as well as the application for stay are dismissed. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE January 21, 2010 sunita