Punjab-Haryana High Court
Harnam Singh vs Arbindu Nath on 1 July, 2003
Equivalent citations: AIR2004P&H210, (2004)136PLR305, AIR 2004 PUNJAB AND HARYANA 210, (2003) 4 RECCIVR 168, (2004) 1 PUN LR 305, (2004) 3 LANDLR 697, (2004) 1 ICC 259, 2004 HRR 2 406
JUDGMENT M.M. Kumar, J.
1. This petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenges order dated 23.9.2000 passed by the Additional Civil Judge (Sr. Division), Gurdaspur dismissing the objections of the judgment-debtor-petitioners (for brevity, 'JD-petitioners') in which it was claimed that the decree dated 23.12.1993 passed in favour of the decree-holder-respondents (for brevity, 'DH-respondents') could not be executed without satisfying the claim of the JD-petitioners which was decreed by the judgments and decree dated 18.11.1953.
2. Brief facts of the case are that the DH-respondents filed a civil suit for possession by way of redemption and also sought direction to the JD-petitioners to remove the super-structure and malba. The suit was decreed on 23.12.1993. The JD-petitioners have filed objections under Section 47 of the Code which have been rejected by the executing Court vide impugned order dated 23.9.2000 on the principal ground that any pre-decree objections should have been raised in the suit itself. The objectors could not claim the amount by setting up a counter claim because in the decree dated 18.11.1953 their claim for Rs. 1356/- on account of sinking of a well in the land in dispute and Rs. 70/- the costs of the trees planted by them was decreed. The additional ground which weighed with the executing Court is that the law of limitation would interfere to defeat the claim of the JD-petitioners. The view of the executing Court in this regard reads as under:-
"...the objectors have already obtained judgment/decree dated 18.11.1953 from the court of then Senior Sub Judge, Gurdaspur in which it was declared that Hakam Singh etc. were entitled to Rs. 1356/- on account of cost of sinking well in the land in dispute and also Rs. 70/- as cost of the trees planted by them. The said amount as alleged by the JD/objectors was paid to Hakam Singh etc. by Khushal Singh father of objectors Harnam Singh etc. I am of the opinion that the Objectors were competent to claim the said amount subject to law of limitation from the DH or to raise any such claim by way of counter claim in the main suit. Decree has already been passed in favour of the Decree holder and all the matters relevant to the dispute have already been decided in favour of the DH Arbindu Nath. The present objection petition is devoid of merit and is, therefore, dismissed."
3. On behalf of the petitioner, it has been pleaded in the grounds of revision that the decree-holder-respondent has failed to deposit the amount due in pursuance of the decree dated 18.11.1953 passed by the Civil Judge, Gurdaspur and, therefore, the decree-holder is not entitled to execute the decree dated 23.12.1993. The amount of Rs. 1356/- on account of cost of sinking well in the suit land and Rs. 70/- as cost of trees planted by predecessor of JD petitioner was liable to be paid to the JD-petitioner as it has been decreed vide judgment and decree dated 18.11.1953.
4. 1 have thoughtfully considered the submissions made by the learned counsel for the parties and am of the view that the decree passed on 18.11.1953 in favour of the JD -petitioners should have been set up by them as a defence before the Court, which have passed the decree in favour of the decrce-holder-respondent on 23.12.1993. In execution proceedings initiated for the execution of decree dated 23.12.1993, pre-decretal decisions, compromise or any arrangement could not be pleaded to defeat the execution. In support of this view, reliance could be placed on a judgment of the Full Bench of Madras High Court in the case of Adappa Papamma v. Venkaya, A.I.R. 1935 Madras 860 and another judgment of the Madras High Court in the case of K.R. Chetty v. N.R. Pillai, A.I.R. 1972 Madras 107. Moreover, the decree passed on 18.11.1953 should have been executed within the stipulated period of limitation and the same has not been done. Therefore, I am of the considered view that the pre-decree agreement compromise and judgment should have been, pleaded by the JD-petitioner in the proceedings of the civil suit, which resulted in passing of decree dated 23.11.1993. No such objection could be raised at the time of execution of the decree dated 23.11.1993. The impugned order dated 23.9.2000 does not suffer from any legal infirmity warranting interference of this Court. Therefore, the revision petition is devoid of merit and is, liable to be dismissed.
For the reasons recorded above, this petition fails and the same is dismissed.