C.R. No.3467 of 2001 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.3467 of 2001 (O&M) Date of Decision: 18.08.2009 Nachhatar Singh .....Petitioner Versus Karnail Singh and others ...Respondents Present: Mr. Arvind Kumar, Advocate for the petitioner. Mr. Yogesh Sharma, Advocate for respondent No.1. CORAM:HON'BLE MR. JUSTICE K. KANNAN 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? -.- K. KANNAN J. (ORAL) 1. The revision is at the instance of one of the 2nd respondent in an execution petition filed by one of the decree-holders. The respondent was a co-plaintiff with the decree-holder in whose favour the trial Court had granted decree for pre-emption and for recovery of possession. The defence at the trial Court by the defendant, who was a transferee and who was in possession of the property, was one of the plaintiffs namely Nachhatar Singh was not a co-heir of the property and his status as a son of a co-heir had not been established. This contention relating to status of one of the plaintiffs appears to have been not considered by the trial Court but there was a decree jointly in favour of both the plaintiffs. The defendant had preferred an appeal C.R. No.3467 of 2001 (O&M) -2- before the Appellate Court and one of the grounds was that the status of Nachhatar Singh as a co-sharer and his entitlement to seek for pre- emptive right was denied. The Appellate Court accepted the contention although it ultimately dismissed the appeal filed by the defendant. The ultimate finding of the Appellate Court was not a complete affirmation of the trial Court's judgment but it modified the judgment and decree in the following words: “....In view of the what has been discussed above, I find no merit in the appeal of the appellant but while dismissing the appeal, I modify the judgment and decree of the trial Court under appeal to the extent that only Karnail Singh plaintiff respondent has been proved to be possessing a superior right of pre-emption to pre-empt the sale in question. With this modification the appeal of the appellant fails and the same is dismissed. The judgment and decree of the trial Court are confirmed. The parties are left to bear their own costs......” 2. It appears that when the Appellate Court's decree was drafted, it had merely referred to the appeal as having been dismissed but did not provide for a modification in the manner in which the judgment read. The Appellate Court's judgment appears to have been again challenged by the defendant but the lower Appellate Court's decision was confirmed by the High Court in its judgement dated 21.02.1992. Admittedly the plaintiffs had not applied for delivery of possession of the property which was the subject matter of suit all along till the petition was filed several years later. The objection C.R. No.3467 of 2001 (O&M) -3- statement had been filed by Nachhatar Singh, who had been cited as 2nd respondent, on the ground that he was also one of the decree- holders and he had actually parted with 50% of the sale consideration and had taken possession of one half of the extent of property while the remaining half alone had been taken possession by Karnail Singh, he having parted with only the remaining 50% of the consideration. In the objection statement, Nachhatar Singh had also contended that the judgment debtor Avtar Singh had left the property after the Appellate Court decree and both the plaintiffs had taken their respective moieties of property. He also contended that, that was the reason why Karnail Singh had not filed any petition for execution all these years since there was no need for the same. 3. The decree-holder had filed a reply to the objection statement and apart from a bald averment that the objection statement was wrong and denied, he had not specifically denied anywhere that the property had been taken possession of outside Court in equal moieties. He had, however, denied that the sale price had been paid also by Nachhatar Singh. 4. The Executing Court rejected the objection and held that an Executing Court cannot go behind the terms of the decree and being satisfied that the Appellate Court judgment provided only for the right of Karnail Singh and the modification that it had effected with reference to his superior right over Nachhatar Singh held that the objection could not be sustained and the decree had to be executed. The fallacy in the approach of the Executing Court is not that it could not have traversed behind the terms of the decree but it failed to C.R. No.3467 of 2001 (O&M) -4- consider an important objection raised by Nachhatar Singh that delivery of the property had already been taken outside the Court's process and Karnail Singh himself was in possession of only a half and the remaining half property had been in his possession. The objection of Nachhatar Singh that Karnail Singh was literally trying to execute the decree only against him, was not considered in the proper perspective, having regard to the specific objections taken by him that property had been taken possession outside the Court process. If that had been done, as stated by Nachhatar Singh, the execution petition itself could not be maintained. 5. It will be wrong to assume that every decree-holder has to necessarily apply for execution only through Court and that in the absence of any delivery receipt from Court, the decree-holder cannot obtain any right in the property. Execution as provided under Order 21 CPC is only one of the methods of realizing the fruits of the decree. If a decree-holder can take possession of property without resort to Court process and without transgressing any law such as when it may happen that a judgment debtor does not cause obstruction or when he willingly delivers possession of the property to the decree- holder. In such an event, a fresh execution petition in respect of the very same property shall be barred. 6. Having regard to the specific objection taken by one of the plaintiffs, Nachhatar Singh that the attempt of Karnail Singh was only to take possession of the property from him and that was why he had been arrayed and described as a judgment debtor in the petition was not properly appreciated by the Executing Court. While, I affirm the C.R. No.3467 of 2001 (O&M) -5- reasoning of the Executing Court that it cannot go behind the terms of the decree read in the context of the judgment, it shall still adjudicate on whether the execution petition itself was maintainable and whether the contention of one of the plaintiffs, Nachhtar Singh that the property had been taken delivery outside the Court process was true or not. 7. The order of the Executing Court is, under the circumstances, set aside and the matter is remitted to the Executing Court to consider the objections raised by Nachhatar Singh, the 2nd plaintiff in suit for specific consideration of the point raised in paragraph 7 of his objection petition. The parties shall have full opportunity to let in evidence on the point for which adjudication is to be rendered. The parties shall appear before the Executing Court on 15.09.2009. 8. The revision petition is disposed of in the above terms. (K. KANNAN) JUDGE August 18, 2009 Pankaj*