CR No.3661 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.3661 of 2007 (O&M) Date of Decision: 17.10.2008 Kashmir Kaur ....Petitioner Vs. Sardul Singh ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Rajeshwar Singh, Advocate, for the petitioner. Mr.Kuldip Sanwal, Advocate, for the respondent. Vinod K.Sharma,J. (Oral) This revision under Article 227 of the Constitution of India is directed against the order dated 7.5.2007 passed by the learned Civil Judge (Senior Division), Gurdaspur vide which application moved by the petitioner for restoration of the execution proceedings has been ordered to be dismissed. Late Lachhman Singh, father of the petitioner filed a suit for declaration to the effect that he was owner in possession of land measuring 28 kanals 16 marlas comprised in Khewat No.241 Khatoni No.464 Rect No.43 Killa No.11/1/2 (5-8), 12/2(5-8), 13/2(2-0), Khewat No.303 khatoni No.595 Rect No.43, Killa No.13/2(6-0), Khatoni No.596 Rect No.43 Killa No.17/1(6-9), 18/2(3-11), situated in village Tugalwal HB No.533 Tehsil CR No.3661 of 2007 2 and District Gurdaspur with a consequential relief of permanent injunction restraining the defendant from interfering in any manner in the peaceful possession of the plaintiff. In the alternative relief of possession was also claimed. The suit filed by late Lachhman Singh was decreed in the following terms:- “ This suit is coming before me (K.C.Gupta, PCS, Civil Judge (Junior Division), Gurdaspur for final disposal on 10.1.1996 in the presence of Sh.Viresh Nanda, Advocate, counsel for the plaintiff and Shri K.S.Riar, Advocate, counsel for the defendants. It is ordered that the suit of the plaintiff for declaration that he is owner in possession of the land measuring 28 kanals 16 marlas comprised in Khewat No.241 Khatoni No.464 Rect No.43, Killa No.11./1/2(5-8), 11/3/2(6-0), Khatoni No.596 Rect No.43 Killa No.17/1(6-9), 18/2(3-11), and for a decree of possession as well as permanent injunction is decided in favour of the plaintiff against the defendant. Parties are left to bear their own costs.” The execution application moved by late Lachhman Singh was got dismissed as having been satisfied. The petitioner moved an application for restoration of execution application alleging that late Lachhman Singh had moved an application to SHO Police Station, Kahnuwal against Sardul Singh on 31.12.1998 apprehending commission of crime by the judgment debtor by CR No.3661 of 2007 3 using force and coercion. An application was also moved by the wife of late Shri Lachhman Singh to Senior Superintendent of Police, Gurdaspur against the judgment debtor alleging that Lachhman Singh had been kidnapped on 5.1.1999. It was on 19.11.1999 that the execution application was got consigned on the statement of Lachhman Singh recorded in court on 8.1.1999. It was claimed that the said statement was not of his free Will but the result of fraud and coercion. It was also claimed that the said statement was got procured from decree holder under the threat of death. Thus, it was claimed that the execution petition be restored. The allegations were denied by the respondent judgment debtor. Sardul Singh has not only got the execution application dismissed by using influence but by using power of attorney has transferred the property in dispute to his son by way of sale. On the pleadings of the parties, learned court below was pleased to frame the following issues:- 1. Whether there is sufficient ground to restore the execution in question? OPA 2. Whether the present application has been filed by an authorized person? OPA 3. Relief. Learned executing court decided both the issues together. Oral CR No.3661 of 2007 4 and documentary evidence was produced by the petitioner in support of his contentions. In defence judgment debtor tendered in evidence certified copy of plaint Ex.R.1, copy of written statement Ex.R.2, certified copy of examination in chief of deceased Lachhman Singh as well as that of his cross examination, Ex.R.5 and R.6. Learned executing court observed that Lachhman Singh himself suffered a statement to withdraw the execution and therefore, power of attorney executed by Lachhman Singh in favour of the applicant Kashmir Singh became meaningless. The learned court observed that it was not possible for the petitioner to get the execution restored as he was not a party. The court observed that Lachhman Singh being master of his case withdrew the execution application on the basis of power of attorney executed by late Lachhman Singh in his favour, application for restoration of execution proceedings was not maintainable. The learned counsel for the petitioner contends that the learned executing court failed to notice that it was a case of fraud played by judgment debtor in getting the execution dismissed as satisfied. The contention of the learned counsel for the petitioner is that the fraud vitiates every action. Learned counsel referred to the judgment passed by the civil court which is sought to be executed, which shows that late Lachhman Singh had contested the suit. Evidence was also brought on record with regard to his kidnapping and moving of application thereafter. It was admitted by the learned counsel for the judgment debtor that it was judgment debtor who was in possession of the property in CR No.3661 of 2007 5 dispute qua which the decree for possession was passed. It is not understood how, it could be said that the decree stood satisfied. No compromise in terms of Order 21 Rules 1 and 2 of the Code was placed on record. The facts on record clearly show that everything was not above board as judgment debtor has tansferred the property in favour of his son to defeat the rights of the decree holder. Finding that it was not possible for the petitioner to seek revival of application as attorney is no longer sustainable as Lachhman Singh is already dead and his legal representatives can, therefore, maintain an application for restoration of execution application on the ground of fraud which is apparent in view of the facts brought on record. It is also pertinent to mention here that no compromise was placed on record showing the satisfaction of the decree. In the absence of compromise having been placed on record in terms of Order 21 Rules 1 and 2 of the Code of Civil Procedure, the decree was required to be executed in accordance with law and could not be said to have been satisfied. Transfer in favour of son by the judgment debtor is hit by rule of lis pendens. For the reasons stated above, this revision is allowed. The impugned order is set aside. The application moved by the petitioner for restoration of execution application stands allowed. The case is remanded back to the Executing Court to proceed with the execution application in accordance with law. 17.10.2008 (Vinod K.Sharma) rp Judge