C.M.No.2884-CII of 2011 in Civil Revision No.6309 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.M.No.2884-CII of 2011 in Civil Revision No.6309 of 2010(O&M) Date of Decision: February 1, 2011 Gian Singh .....Petitioner v. Sohan Lal and another .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.R.K.Dadwal, Advocate for the applicant-petitioner. Mr.Roopak Bansal, Advocate for the respondents. ..... RAM CHAND GUPTA, J. C.M.No.2884-CII of 2011 1. Learned counsel for the applicant-petitioner requests for placing on record copies of judgment and decree dated 25.5.1995 passed by Additional Senior Sub Judge, Dasuya, Annexure A1, and dated 18.11.1997 passed by learned Additonal District Judge, Hoshiarpur, Annexure A2. 2. The same are taken on record subject to all just exceptions. 3. Application stands disposed of accordingly. Civil Revision No.6309 of 2010 4. It has been reported by the Registry that file of this case is not traceable as the same appears to have been burnt on account of fire incident in the concerned Branch. 5. On the asking of the Court, learned counsel for the petitioner has placed on record another copy of complete paper-book. The same is taken on record. 6. The file is reconstructed. 7. The present revision petition has been filed under Article 227 C.M.No.2884-CII of 2011 in Civil Revision No.6309 of 2010(O&M) -2- of the Constitution of India for setting aside order dated 28.5.2010 passed by learned Additional Civil Judge, Senior Division, Dasuya, vide which execution application filed by present petitioner was dismissed without ordering for restoration of possession in favour of the petitioner. 8. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned Executing Court. 9. Briefly stated the respondent-plaintiffs filed a suit for joint possession in respect of 3 kanals 7 marlas of land being 1/3rd share of land measuring 10 kanals on the basis of agreement to sell dated 20.12.1991 on the plea that present petitioner is co-sharer to the extent of 3 kanals 7 marlas in total land and he executed agreement to sell with regard to said land for a sale consideration of Rs.30,000/- in favour of respondent-plaintiffs and that a sum of Rs.15,000/- was paid as earnest money and the sale-deed was to be executed on or before 30.6.1992. On failure of petitioner-defendant to get the sale-deed executed, civil suit was filed by respondent-plaintiffs for specific performance of the agreement to sell. Suit of respondent-plaintiffs was decreed by learned trial Court. 10. Aggrieved against the said judgment and decree, petitioner filed Civil Appeal No.92 of 25.7.1995. Learned appellate Court vide judgment and decree dated 18.11.1997 set aside the decree passed by learned trial Court with regard to specific performance of the agreement and decreed the suit with regard to recovery of Rs.30,000/- alongwith interest @ 6% per annum from the date of agreement to date of recovery. 11. During pendency of the said proceedings, present petitioner also filed a suit for permanent injunction restraining respondents from interfering in his possession in the land in dispute and however plea was taken by respondent-plaintiffs that they are in possession by virtue of agreement to sell in their favour. Suit filed by petitioner for injunction was dismissed on 25.5.1995. Even appeal filed by petitioner was also dismissed vide order dated 18.11.1997. Respondents aggrieved against the judgment and decree for granting alternative relief of recovery in their suit, filed RSA No.900 of 1998, whereas petitioner also filed RSA No.130 of 1998, against dismissal of his suit and appeal for relief of injunction. C.M.No.2884-CII of 2011 in Civil Revision No.6309 of 2010(O&M) -3- 12. Appeal filed by the respondents for relief of specific performance of agreement was dismissed by this Court and hence, appeal filed by present petitioner for injunction before this Court was withdrawn by him. 13. Respondent-plaintiffs filed SLP No.2551 of 2010 against judgment of this Court dismissing their appeal, which was also dismissed by Hon'ble Supreme Court on 19.3.2010. Hence, judgment and decree dated 18.11.1997, decreeing the suit of respondent-plaintiffs for recovery acquired finality. 14. Petitioner filed an application before learned Executing Court for depositing the amount of Rs.40,800/- and for delivering possession of the property in dispute to him, on which impugned order was passed on 20.5.2010 by learned Additional Civil Judge, Senior Division, Dasuya by observing that petitioner-judgment debtor has already deposited Rs.40,800/- in the Court, which included the principal amount of Rs.30,000/- and the interest and hence, the said amount was ordered to be given to decree-holder and execution application was filed, as fully satisfied. 15. It has been contended by learned counsel for the petitioner that possession was taken by respondent-plaintiffs pursuance to the agreement to sell executed in their favour by present petitioner-defendant and that relief for specific performance was not granted to respondent-plaintiffs upto Hon'ble Apex Court and hence he is entitled for possession of the land in dispute in the execution proceedings and hence it is contended that learned Executing Court should not have dismissed the execution petition, as fully satisfied. 16. On the other hand, it has been argued by learned counsel for the respondent-plaintiffs that there is no decree of possession in favour of petitioner-defendant from any court and that rather the case, throughout of the petitioner-defendant was that he was in possession of the land in dispute and however, his suit for permanent injunction on the basis of possession was also dismissed upto this Court. Hence, it is contended that he is having no right to seek possession in execution of decree for recovery passed in favour of respondent-plaintiffs. 17. Admitted facts are that suit was filed by respondent-plaintiffs C.M.No.2884-CII of 2011 in Civil Revision No.6309 of 2010(O&M) -4- for specific performance of agreement to sell in their favour executed by petitioner-defendant and in the alternative, relief for recovery of amount was also sought. Respondent-plaintiffs could not succeed in getting relief for specific performance of agreement to sell executed in their favour by petitioner-defendant. They succeeded only getting alternative relief of recovery of money. There was no counter-claim of petitioner-defendant in the said proceedings for recovery of possession. Rather stand of petitioner- defendant since the very beginning was that he was in possession of the land in dispute. He also filed a suit for permanent injunction on the plea that he was in possession of the land in dispute and that possession was never handed over to respondent-plaintiffs. However, the said plea was not accepted by the Courts and the suit filed by present petitioner-defendant for permanent injunction was dismissed. 18. Hence, when admittedly respondent-plaintiffs are in possession of the land in dispute and when there is no decree in favour of present petitioner-defendant for possession, there is no provision of law under which present petitioner-defendant can seek possession of the land in dispute from respondent-plaintiffs in execution of decree which was passed in their favour. 19. Learned counsel for the petitioner-defendant has argued that he can seek possession under Section 47 of the Code of Civil Procedure (hereinafter to be referred as the `Code'). 20. It is pertinent to reproduce the said provision of law, which reads as under:- “47.Questions to be determined by the Court executing decree.-(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2) Omitted. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. C.M.No.2884-CII of 2011 in Civil Revision No.6309 of 2010(O&M) -5- [ Explanation 1.- For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II. (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.]” 21. A very perusal of the said provision shows that all the questions arising between the parties to the suit in which decree was passed or their representatives, and relating to execution, or discharge or satisfaction of the decree would be determined by the Court executing the decree and not by a separate suit. 22. However, the present case of petitioner does not relate to execution, discharge or satisfaction of the decree which was passed in favour of respondent-defendants. Decree in favour of respondent-plaintiffs already stood satisfied after decretal amount was deposited by petitioner- defendant before the Executing Court and hence, there is no force in the argument of learned counsel for the petitioner-defendant that he can seek possession of property in dispute from respondent-plaintiffs under Section 47 of the Code. 23. It has further been contended by learned counsel for the petitioner-defendant that he can seek possession under Section 20 of the Specific Relief Act, 1963 (hereinafter to be referred as the `Act') and that he cannot file separate suit for possession by virtue of Section 28 of the Act. 24. However, there is no force in the said contention as well, as Section 20 of the Act deals with discretion and power of the Court for decreeing suit for specific performance, under which Court was empowered to grant any relief. However, in this case, no such relief of possession was granted in favour of petitioner-defendant by learned trial Court or by learned appellate Court, as no such relief was claimed by the petitioner- defendant. C.M.No.2884-CII of 2011 in Civil Revision No.6309 of 2010(O&M) -6- 25. In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned Executing Court in ordering for dismissal of the execution petition, as fully satisfied, and that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. 26. Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. 27. Hence, the present revision petition is dismissed being devoid of any merit. 1.2.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No