IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO Nos. 26, 27 and 28 of 2005. Judgement reserved on: 15.6.2011. Date of decision: 16.6.2011. 1. CMPMO No. 26 of 2005. Bhoop Ram …..Petitioner. Vs. Dev Raj …. Respondent. 2. CMPMO No. 27 of 2005. Bhoop Ram …..Petitioner. Vs. Dev Raj …. Respondent. 3. CMPMO No. 28 of 2005. Bhoop Ram …..Petitioner. Vs. Dev Raj …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioner(s) : Mr. S.D.Sharma, Advocate. For the Respondent(s) : None. Kuldip Singh, Judge. This judgement shall dispose of CMPMO Nos. 26, 27 and 28 of 2005 as common question of law is involved in all the petitions. Whether the reporters of the local papers may be allowed to see the Judgment? …2… CMPMO No. 26 of 2005. 2. The petitioner has assailed the order dated 7.1.2005 passed by the learned Civil Judge (Junior Division), Court No. 4, Shimla in Execution Petition No. 9-10 of 2002 dismissing the objections of the petitioner, under Section 47 CPC. It has been alleged that respondent had filed Execution Petition No. 9-10 of 2002 for executing the ex-parte decree dated 12.11.2001 passed in CS No. 331/1 1999/98 by the learned Civil Judge (Junior Division), Court No. 4, Shimla. The petitioner for want of legal aid was handicapped in defending the civil suit and thereafter execution petition. The petitioner had also filed an application under O. 9 Rule 13 CPC for setting aside the ex-parte decree, but again for want of proper legal aid, the said application was dismissed in default on 5.11.2003. The petitioner had filed an application for restoration of Order 9 Rule 13 CPC application, which was dismissed in default. 3. It has been alleged that legal aid counsel of the petitioner had filed application on 30.12.2004 under Order 21 Rule 106 CPC, which was dismissed on the same day by the learned Executing Court and ordered the execution of the decree by appointing a local commissioner for executing the sale deed. 4. The petitioner then filed objections in the execution petition under Section 47 CPC, which were dismissed on 7.1.2005. It has been stated that impugned order is against law and facts. The petitioner was without legal aid and, therefore, he could not defend himself properly in the execution, hence, order dated 7.1.2005 is …3… liable to be set-aside. The learned Executing Court had not given reasonable opportunity to the petitioner to defend the execution petition. The petitioner was not given sufficient time to file objections to the draft sale deed. The court below has not appreciated that application under O. 9 Rule 9 read with Section 151 CPC for restoration of application under Order 9 Rule 13 read with Section 151 CPC was dismissed in default on 5.11.2003. The application under Section 151 CPC for staying proceedings in Execution Petition No. 9-10 of 2003 and application under Section 5 of Limitation Act, were pending before the Executing Court. The petitioner has prayed for setting aside the order dated 7.1.2005. CMPMO No. 27 of 2005 5. The petitioner has assailed the order dated 7.1.2005, passed by learned Civil Judge (Junior Division), Court No.4, Shimla in Execution Petition No. 7-10 of 2002, dismissing the objections of petitioner, under Section 47 CPC. It has been alleged that respondent had filed execution petition No. 7-10 of 2002 for executing the ex- parte decree dated 12.11.2001 passed in Civil Suit No. 281/1 of 1999-98 by the learned Civil Judge (Junior Division), Court No. 4. The petitioner has assailed the impugned order in CMPMO No. 27 of 2005 by taking more or less the same grounds as he has taken in CMPMO No. 26 of 2005. Therefore, it is not necessary to repeat the grounds which have been taken by the petitioner in assailing the impugned order in CMPMO No. 27 of 2005. …4… CMPMO No. 28 of 2005. 6. The petitioner has assailed the order dated 7.1.2005, passed by learned Civil Judge (Junior Division), Court No.4, Shimla in Execution Petition No. 8-10 of 2002, dismissing the objections of petitioner, under Section 47 CPC. It has been alleged that respondent had filed execution petition No. 8-10 of 2002 for executing the ex-parte decree dated 12.11.2001 passed in Civil Suit No. 329/1 of 1999-98 by the learned Civil Judge (Junior Division), Court No. 4. The petitioner has assailed the impugned order in CMPMO No. 28 of 2005 by taking more or less the same grounds as he has taken in CMPMO No. 26 of 2005. Therefore, it is not necessary to repeat the grounds which have been taken by the petitioner in assailing the impugned order in CMPMO No. 28 of 2005. 7. I have heard the learned counsel for the petitioner in each petition, none appeared on behalf of the respondent. The petitioner has placed on record copy of objections under Section 47 CPC in each petition. The petitioner has taken more or less similar grounds in objections filed under Section 47 CPC in each petition. Therefore, in order to avoid repetition, objections under Section 47 CPC placed on record in CMPMO No. 26 of 2005 are referred to in the judgement. In the objections under Section 47 CPC, the petitioner has primarily projected the case that he was not having proper legal aid both in the civil suit and in the execution petition. It has been submitted that he had filed an application for restoration of application under Order 9 Rule 13 CPC alongwith application under Section 151 CPC and Section 5 of the Limitation Act. The …5… applications were pending before the court below. The decree suffers from legal infirmity on account of non-participation of the petitioner for want of proper legal aid, hence execution petition for executing the ex-parte decree is null and void and the execution petition is liable to be dismissed. 8. The petitioner has filed an application for restoration of application for setting aside ex-parte decree, therefore, execution petition was liable to be kept in abeyance till the disposal of restoration application as well as application for setting-aside ex-parte decree. The sale deed executed through the indulgence of the court is in contravention of the decree, the land is joint, there is no proper identification of the land of the petitioner and the decree is not executable. The structures, houses, cattle sheds were not part of the alleged agreement. The petitioner in the objections has prayed for dismissal of the execution petition. 9. It is an admitted case of the petitioner in all the petitions that he has suffered an ex-parte decree and the respondent has filed three execution petitions for executing the decrees. It has been submitted that petitioner had filed application for setting-aside ex- parte decree in each suit, but that application was dismissed in default and he had filed an application for restoration of the application which was earlier dismissed in default. The petitioner has taken the stand that decree is not executable. The land is ancestral and property is not identifiable. In brief, it is the contention of the petitioner in each petition that decree is not executable. The petitioner has also taken the plea that in alternative each of the …6… execution petition is liable to be kept in abeyance till his application for setting aside ex-parte decree, another application for restoring application for setting aside ex-parte decree, which was dismissed in default, are decided. 10. In CMPMO No. 26 of 2005, the petitioner has placed on record the impugned order dated 7.1.2005, which is as follows:- “7.1.2005 Present: Sh.Vivek Sharma, Adv. Vice counsel for the DH. Sh. S.D. Sharma, Adv. Counsel for JD already exparte POA filed by counsel for JD. The report of Local Commissioner regarding the execution of sale deed filed which was duly registered by Sub-registrar, Junga on 3.1.2005. Application u/s 47 CPC filed. Copy supplied. Since the sale deed has already been executed, the objection filed is not maintainable. Hence application is dismissed as infructuous. Be put for execution of remaining decree as per O 21 R 32 (5) & for moving appropriate application, as prayed for 22. 3.2005 (22.3.2005). Sd/- Civil Judge (Junior Division) Court No. 4, Shimla (H.P).” Similar orders have been passed by the learned Executing Court in other two execution petitions, which have been placed by the petitioner on record of CMPMO Nos. 27 and 28 of 2005. 11. On 30.12.2004, the learned Executing Court in each execution petition had dismissed the application, under Order 21 Rule 106 CPC for setting aside ex-parte order. The order dated 30.12.2004 was passed by the learned Executing Court in presence of the petitioner and his counsel. The learned Executing Court in the order dated 30.12.2004 has observed that judgement-debtor has …7… admitted that he has received copy of sale deed and he did not object to it. In these circumstances, the learned Executing Court gave direction to the local commissioner to execute the decree (sic sale deed) drafted and approved by the executing court on or before 7.1.2005 and the execution petition was fixed for 7.1.2005. 12. On 7.1.2005, the learned executing court has observed that as per report of the local commissioner, the sale deed has been registered on 3.1.2005 by Sub-Registrar, Junga. The petitioner on 7.1.2005 at that stage had filed objections under Section 47 CPC. The learned Executing Court has observed that since the sale deed has already been executed and therefore, dismissed the objections under Section 47 CPC as not maintainable. The learned executing court fixed the execution on 22.3.2005 for execution of the remaining decree as per O.21 Rule 32 (5) CPC. 13. The Section 47 CPC provides that all questions arising between the parties to the suit in which 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. The questions raised by the petitioner against the execution of the decree in each execution petition are not covered under Section 47 CPC. It is not the case of the petitioner that he has discharged or satisfied the decree. The objection of the petitioner that decree is not executable does not emerge from the material on record. The submission of the learned counsel for the petitioner is that land is ancestral, some of the properties included in the decrees were not covered by the …8… agreement or the execution be kept in abeyance till decision of restoration application are beyond the scope of Section 47 CPC. The petitioner was given copy of draft sale deed, but neither the petitioner nor his counsel raised any objection against the draft sale deed, which is clear from order dated 30.12.2004. The order dated 7.1.2005 was also passed in presence of the petitioner and his counsel, but by that time the sale deeds were already executed on 3.1.2005. The executing court cannot go behind the decree. 14. The learned counsel for the petitioner has relied Kamakshi vs. Jugraj Jain AIR 1993 MAD 21 and Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329. In Kamakshi (supra) the question was whether the order has been passed under Order 17 Rule 3 or under Order 17 Rule 2 CPC. On facts of the case, it was held that order passed by the lower court cannot be construed as an order under Order 17 Rule 3 CPC. The court also held that in these circumstances, application under Order 9 Rule 13 CPC is maintainable. This is not the question involved in the present petitions. The question is regarding the execution of the decree. 15. The learned counsel for the petitioner has relied paragraph 49(g) of Shalini case (supra) where it has been held that apart from the situations pointed in (e) and (f) High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. …9… 16. The petitioner has assailed the order dated 7.1.2005 passed separately in each execution petition. On facts, the petitioner in each petition has failed to bring his case within the principle laid by the Supreme Court in paragraph-49 (g) in Shalini case (supra). The petitioner has failed to make out any case for interference. The petitions are, therefore, liable to be dismissed. 17. In view of above discussion, CMPMO Nos. 26, 27 and 28 of 2005 are dismissed. The interim orders passed in each petition are vacated. No costs. June 16, 2011. ( Kuldip Singh ), (Hem) Judge.