Civil Revision No.4514 of 2004 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: May 06, 2008 Surjit Singh ...Petitioner VERSUS Jagtar Singh and others ...Respondents CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 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? Present: Mr.Govind Goel, Advocate, for the petitioner. Mrs.Sonia G.Singh, Advocate, for respondent No.1. ***** RANJIT SINGH, J. This order will dispose of two Civil Revision Nos.4514 of 2004 (Surjit Singh v. Jagtar Singh and others) and 61 of 2005 (Surjit Singh v. Jagtar Singh and another). Petitioner in Civil Revision No.4514 of 2004 seeks setting- Civil Revision No.4514 of 2004 : 2 : aside of the order passed by the Executing Court on 27.8.2004 in the execution application and for issuance of direction to the Executing Court to execute the consent decree dated 30.7.1999. Through its order passed on 27.8.2004, the Executing Court had thought it necessary to frame issues while disposing of the objections filed by the Judgment-debtor as well as the third party, which is under challenge in the present revision petition. The facts in Civil Revision No.4514 of 2004 reveal that the petitioner entered into an agreement to sell in respect of land measuring 27 kanals 12 marlas, situated in village Pakho, Tehsil Barnala, District Sangrur. The vendor-defendant was paid a sum of Rs.four lacs and the remaining amount of Rs.1,75,500/- was to be paid at the time of execution of the sale deed. When the vendor failed to execute the registered sale deed, the petitioner filed a civil suit for specific performance. During the pendency of the suit, the parties reached a written compromise on 28.7.1999, which was presented to the court on the same date itself. The parties appeared before the court as witnesses and stood by the compromise deed. The trial court accordingly passed a judgment and decree dated 30.7.1999 and the suit was, thus, decreed in respect of 24 kanals of land and was dismissed as withdrawn for remaining 3 kanals and 12 marlas. The sale consideration was reduced to Rs.four lacs for 24 kanals and the defendant agreed to execute the decree in favour of the petitioner-plaintiff on or before 30.11.1999. He also agreed to deliver the possession of the land free from all encumbrances. Despite this decree passed on the basis of an solemn undertaking, Civil Revision No.4514 of 2004 : 3 : the judgment-debtor failed to execute the sale deed. The petitioner, thus, filed an execution application on 18.12.2000. The draft sale deed was also filed along with the application. In response to this execution petition, judgment-debtor filed an objection petition on 17.11.2001. It is pleaded that the petitioner-plaintiff had obtained this decree by misrepresentation and fraud and thus the same is vitiated and liable to be set-aside. Respondent Nos.2 and 3 have also filed their objections as a third party. As per respondent No.2, the property in question already stands exchanged with her and the possession of the property has already changed hands in accordance with this exchange deed carried out in the year 1997. Considering the objections, The Executing Court has decided to frame the issues to see if the judgment and decree dated 30.7.1999 is obtained by fraud etc. and if so to what effect. Civil Revision No.61 of 2005 is filed by the same petitioner and respondent No.2 is The Tapa Primary Cooperative Agricultural Development Bank Limited. Issues involved are identical, whereby the petitioner seeks quashing of the order dated 15.12.2004 and for issuance of a direction to the Executing Court to execute the consent decree dated 30.7.1999. In this case, the petitioner had entered into an agreement to sell the property measuring 28 kanals 5 marlas, situated in the same village for consideration of Rs.4,41,406- 25P. The defendant was paid a sum of Rs.3.5 lacs at the time of execution of the agreement and remaining sum of Rs.91,406-25P. was agreed to be paid at the time of execution of the sale deed. In this case also, the parties had reached a compromise leading to a Civil Revision No.4514 of 2004 : 4 : judgment and decree dated 30.7.1999. As per the compromise, 16 kanals land was agreed to be sold and the suit was dismissed qua the remaining land. In this case also, the defendant had failed to execute the sale deed leading to filing of the execution petition by the petitioner. Here also the Judgment-debtor had made an allegation of misrepresentation. The petitioner, however, has maintained that Executing Court cannot go beyond the decree and as such should have gone ahead to direct execution of the decree passed instead of dealing with the objections filed by the Judgment-debtor and the third party. His plea further is that they are required to file an independent suit to challenge the decrees and these objections cannot be entertained, especially after expiry of the limitation to challenge the said decree. It is, thus, pleaded that the Executing Court has committed illegality and material irregularity in entertaining this objection petition on the ground that the property stood exchanged and has accordingly filed the present revision petitions. Reference is first made to TCI Finance Ltd. Versus Calcutta Medical Centre Ltd. and another, (2005) 8 Supreme Court Cases 41 to say that the Executing Court cannot go beyond the decree. The Hon'ble Supreme Court in this case though has observed that the Executing Court cannot go beyond the decree, but has held so with a rider that except when the decree is a nullity or is without jurisdiction. It is further noticed that Single Judge of the High Court had noted that the respondent was not having independent right to the property and had claimed a right as an assignee under Civil Revision No.4514 of 2004 : 5 : the Judgment-debtor. The Division Bench, however, had enlarged the scope by directing the Executing Court to decide the controversy in regard to the question of tenancy, a stand which was only taken before the Division Bench. In this background, it was observed that Executing Court cannot go beyond the decree and the action of the Division Bench in enlarging the scope in directing the Executing Court to determine the effect of tenancy was set-aside. On the other hand, reference is made to the case of Government of Orissa Vs. M/s Ashok Transport Agency, 2002(2) RCR (Civil) 665. While interpreting the provisions of Section 47 CPC, it is observed that all questions arising between the parties to a suit in which the decree was passed or their representative and relating to the execution are to be determined by the Executing Court and not by a separate suit. The provisions of Section 47 CPC are quite clear. It specifically provides that all questions arising between the parties to the suit in which decree was passed, or their representatives, and relating to execution, discharge or satisfaction of a decree, are to be determined by the court executing the decree and not by a separate suit. In fact, this provision has been amended for the purpose for settling on the point whether a claim for possession by a purchaser in a court auction in pursuance of execution of a decree is/or is not a question relating to execution of the decree. The amendment is to make it clear that such a question is a question falling under this section. Accordingly, the objection raised by the petitioner that the objectors are required to file a separate suit to challenge the decree Civil Revision No.4514 of 2004 : 6 : cannot be accepted. Similarly, the allegations made by the Judgment-debtor on the part of the petitioner to obtain this decree by fraud or misrepresentation would require adjudication and determination. The third party objections raised on the ground that the land had already been exchanged in the year 1997 also cannot be summarily decided. Since the Executing Court has to deal with this objection, no exception can be taken on the part of the Executing Court to decide the same by framing issues. The consent decree is alleged to have been obtained by fraud or misrepresentation and the Judgment- debtor has been given chance to prove his assertion for which the court has framed issues. The court would have this power to decide the same in terms of the provisions of Section 47 CPC. I am, thus, not inclined to interfere in both the revision petitions, which are accordingly dismissed. May 06, 2008 ( RANJIT SINGH ) ramesh JUDGE