Himachal Pradesh High Court
Reserved On: 14.5.2025 vs Chander Talwar & Another on 20 June, 2025
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2025:HHC:18947 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 73 of 2021 Reserved on: 14.5.2025 Date of decision: 20.6.2025 Hari Ram. ....Petitioner.
Versus
Chander Talwar & Another. ....Respondents.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting?1 Yes.
For the Petitioner : Mr.G.D. Verma, Senior Advocate, alongwith Mr.Digvijay Singh, Advocate.
For the Respondents: Mr.Y.P. Sood, Advocate.
Vivek Singh Thakur, Judge
Present Revision Petition under Section 115 of the Code of Civil Procedure (for short 'CPC') has been preferred against the order dated 4.10.2021 passed by Civil Judge Court No. 7, Shimla, whereby Objection Petition No. 40 of 2018 preferred by petitioner-Judgment Debtor in Execution Petition No. 37-10 of 2017, titled as Chander Talwar & Navneet Talwar Vs. Hari Ram, has been dismissed. Whether the reporters of the local papers may be allowed to see the Judgment? Yes 1 2 2025:HHC:18947 Civil Revision No. 73 of 2021
2. Parties herein shall be referred as per their status in the Execution Petition, i.e. petitioner as Judgment Debtor (JD) and respondents as Decree Holders (DHs).
3. Necessary facts relevant for adjudication of present Revision Petition are that in furtherance to agreement to sell executed by Judgment Debtor in favour of Decree Holders, Decree Holders preferred a Civil Suit No.242-1 of 2009/07 for specific performance of agreement to sell dated 5.10.2000; permanent prohibitory injunction, restraining the defendant from interfering in possession of Decree Holders over the suit land; mandatory injunction, directing the Judgment Debtors to get the charge cleared over the suit land and to execute documents in favour of Decree Holders, so as to enable the Decree Holders to file an application for permission under Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 (for short 'H.P. LR Act') to purchase the suit land. The suit was decreed on 5.3.2012. However, decree for specific performance was subject to grant of permission by the Government under Section 118 of the H.P. LR Act.
4. Judgment Debtor, being aggrieved by the aforesaid judgment and decree dated 5.3.2012, preferred Civil Appeal No. 30-S/13 of 2012, titled as Hari Ram Vs. Chander Talwar & Another. In the appeal, judgment and decree passed by the Trial Court was modified by 3 2025:HHC:18947 Civil Revision No. 73 of 2021 Additional District Judge-1, Shimla vide judgment and decree dated 28.2.2015 in the following operative terms:-
"...Now the modified decree shall be read as under:-
That the suit of the plaintiff is decreed with costs in favour of plaintiffs and against the defendant whereby it is held that the plaintiffs are entitled to decree of specific performance of agreement to sell dated 05.10.2000 qua the suit land comprised in khasra No. 434 measuring 7 biswas, khasra No. 443/1 measuring 13 biswas and khasra No. 433/1/1 measuring 13 biswas, total measuring 1 bigha 13 biswas situated in Mauza Shai Ser, Tehsil and District Shimla, H.P. on payment of remaining amount of Rs.55,000/- to defendant by plaintiffs at the time of registration of sale deed subject to the condition that decree for specific performance shall be executable after receiving permission u/s 118 of H.P. Tenancy and Land Reforms Act by plaintiffs and in case the permission is finally rejected, the decree for specific performance shall become inoperative. Decree for mandatory injunction is passed directing the defendant to execute all necessary documents in favour of plaintiffs so that necessary permission under Section 118 of H.P. Tenancy and Land Reforms Act can be sought by the plaintiffs in view of the facts and circumstances of the case, there is no order as to costs in appeal."
5. The aforesaid judgment and decree passed by Additional District Judge-1, Shimla was not assailed by either party and it has attained finality.
6. For non-compliance of directions issued vide judgment and decree dated 28.2.2015, Decree Holders preferred Execution Petition No. 37-10 of 2017, titled as Chander Talwar & Another Vs. Hari Ram, on 20.7.2017, with following prayers:-
"Mode on which assistance of the Court is required.4
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i) By directing the J.D. to execute all the necessary documents in favour of the plaintiffs as required to be submitted for seeking permission under Section 118 of the H.P. Tenancy and Land Reforms Act. The details of the documents to be executed is given in Rule 38A, sub-rule (1) Form LRXIV of the H.P. Tenancy & Land Reforms Rules.
ii) By attachment and sale of the moveable and immoveable properties of the J.D.
iii) In case the J.D. fails to comply with the decree, then the requisite documents may be got executed in terms of the provisions of Order 21, rule 32(5) of the Code of Civil Procedure.
iv) By any other mode as permissible under the law.
v) By arrest and detention of the J.D. in Civil Imprisonment."
7. Upon service, Judgment Debtor preferred objections which were registered as Objection Petition No. 40 of 2018.
8. In the objections, it was claimed by the Judgment Debtor that judgment and decree passed against him is unexecutable because Decree Holders had obtained the same by suppression of facts, that Judgment Debtor had supplied the documents as required to obtain permission under Section 118 of the H.P. LR Act, that Decree Holders did not disclose that they had already obtained the permission from State of Himachal Pradesh and had purchased the land from Judgment Debtor, whereas Decree Holders cannot purchase the land twice for the same purpose. The Execution Petition was further opposed by stating that for violation of conditions by Decree Holders regarding development of the land for the purpose for which it was purchased by Decree Holders in the past after obtaining the permission from the Government to construct the 5 2025:HHC:18947 Civil Revision No. 73 of 2021 Resort, the proceedings were initiated against the Decree Holders by the Commission set up by the Government of Himachal Pradesh and thus the land purchased earlier was going to vest with the State of Himachal Pradesh and thus Execution Petition in reference for purchase of land again was not maintainable.
9. It was further claimed on behalf of Judgment Debtor that even if on providing requisite documents by the Judgment Debtor to Decree Holders, permission under Section 118 of the H.P. LR Act is granted to the Decree Holders, even then Judgment Debtor would not be able to execute the sale deed in that event also, as in such eventuality he would become landless and as per provisions of the H.P. LR Act, no sale deed can be executed in case seller would become landless.
10. It was also claimed on behalf of Judgment Debtor that Judgment Debtor had already complied with the directions, but the Decree Holders in order to create pressure upon the Judgment Debtor had filed Execution Petition in reference so as to compel Judgment Debtor to give up his claim upon land of Judgment Debtor encroached by Decree Holders.
11. By filing reply to the objections, plea taken by the Judgment Debtor has been refuted with submission that averments with respect to ineligibility of Decree Holders for getting permission under Section 118 of the H.P. LR Act is not relevant for the purpose of adjudicating the 6 2025:HHC:18947 Civil Revision No. 73 of 2021 Execution Petition as permission is to be either granted or refused, on initiation of process for seeking permission under Section 118 of the H.P. LR Act, by the Government of Himachal Pradesh, which stage has not arrived yet, and the Judgment Debtor has no reason to file objections on the basis of speculations and apprehensions in this regard.
12. Learned counsel for the Judgment Debtor has submitted that prayer in Execution Petition is vague and it has not been clarified that what are the documents which are to be provided or executed by the Judgment Debtor in favour of Decree Holders to enable Decree Holders to file an application under Section 118 of the H.P. LR Act.
13. Learned counsel for the respondents-Decree Holders, referring para 10 of the Execution Petition has canvassed that there is categoric mention of documents, required to be supplied and executed by the Judgment Debtor as per Rule 38A, sub-rule (1) Form LRXIV of the H.P. Tenancy and Land Reforms Rules with further prayer for execution and/or supply of documents in terms of provisions of order 21, Rule 32(5) of the Code of Civil Procedure, in case Judgment Debtor fails to comply with the decree. It has been contended that from the aforesaid prayer of the Decree Holders, it is apparent that there is nothing vague, and prayer is specific and clear with respect to compliance required to be made by the Judgment Debtor and in case of failure on his part, to ensure 7 2025:HHC:18947 Civil Revision No. 73 of 2021 compliance of the decree by passing appropriate order under Order 21 Rule 32(5) of the Code of Civil Procedure.
14. It has been contended on behalf of Judgment Debtor that Executing Court has arrived at wrong conclusion that Section 47 of the Code of Civil Procedure is not applicable in present case, whereas objections filed by the Judgment Debtor are raising questions related to execution, discharge or satisfaction of decree arising between the parties and, therefore, questions should be determined in Execution Proceedings by framing issues and giving opportunity to the parties to lead evidence to substantiate their claim, but without relegating the parties to a separate suit.
15. Section 47 of the Civil Procedure Code (for short "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. Therefore, undisputedly any question falling under the ambit and scope of Section 47 of the CPC is to be determined by the Executing Court.
16. Order XXI Rule 101 CPC also confer jurisdiction upon the Executing Court to decide such question without relegating the parties to separate suit depending upon nature of questions, and in case the question can be determined without framing issue(s) but on the basis of 8 2025:HHC:18947 Civil Revision No. 73 of 2021 material already on record and/or findings returned in the judgment and decree sought to be executed no issue would be required to be framed formally. However sometimes, where it is necessary, the Executing Court may frame issues and decide the same after giving opportunity to the parties, if determination of such question is not possible on the basis of material already on record.
17. It is not mandate of Section 47 and/or Order XXI Rule 101 of the CPC that each and every objection is to be decided by the Executing Court by framing formal issues, conducting a trial, mini trial much less denovo trial in the Execution Proceedings. The Executing Court has discretion, no doubt within the framework of law, to decide whether there is requirement of framing of issues or not. A party filing objections cannot claim framing of issues and opportunity to lead evidence as a matter of right in all eventualities.
18. Following observations of the Supreme Court in Brakewal Automotive Components (India) Private Limited Vs. P.R. Selvam Alagappan, (2017) 5 SCC 371, would be relevant in present matter:-
"20. It is no longer res integra that an Executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus unexecutable. An erroneous decree cannot be equaled with one which is a nullity. There are no intervening developments as well as to render the decree unexecutable.9
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21. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof.
22. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric . This Court, amongst others in Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman and others 1971 (1) SCR 66 in essence enunciated that only a decree which is a nullity can be the subject matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt: (SCC pp. 672-73, paras 6-7) "6. A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record:
where the objection as to the jurisdiction of the Court to pass 10 2025:HHC:18947 Civil Revision No. 73 of 2021 the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."
23. Though this view has echoed time out of number in similar pronouncements of this Court, in Dhurandhar Prasad Singh vs. Jai Prakash University and others, AIR 2001 SC 2552, while dwelling on the scope of Section 47 of the Code, it was ruled that the powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executabilty of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree unexecutable after its passing. None of the above eventualities as recognised in law for rendering a decree unexecutable, exists in the case in hand. For obvious reasons, we do not wish to burden this adjudication by multiplying the decisions favouring the same view."
19. It would also be relevant to refer following para of recent judgment dated 6.3.2025 passed by the Supreme Court in Civil Appeal No. 3640 of 2025, titled as Periyamal (dead) through LRs. and others Vs. V. Rajamani & Another Etc.:-
"62. A harmonious reading of Section 47 with Order XXI Rule 101 implies that questions relating to right, title or interest in a decretal property must be related to the execution, discharge or satisfaction of the decree. The import of such a reading of the provisions is that only matters arising subsequent to the passing of the decree can be 11 2025:HHC:18947 Civil Revision No. 73 of 2021 determined by an executing court under Section 47 and Order XXI Rule 101. Such reasoning is reinforced by the decisions of this Court in C.F. Angadi v. Y.S. Hirannayya reported in (1972) 1 SCC 191 and Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman reported in (1970) 1 SCC 670, wherein it has been held that while determining a question under Section 47, an executing court cannot go behind the decree and question the correctness of the same."
19. It is misconceived notion that Executing Court has observed that provisions of Section 47 of the Code of Civil Procedure are not applicable, rather Executing Court has referred and relied provisions of Section 47 of the Code of Civil Procedure, which are similar to the provisions of Order 21 Rule 101 of the Code of Civil Procedure, wherein it has been provided that questions arising between the parties relating to execution, discharge or satisfaction of decree should be determined in the Execution Proceedings. Executing Court has rightly observed that nature of objections raised by the Judgment Debtors are not questions to be determined between the parties to the Execution Petition. Executing Court has not committed any mistake in this regard because failure of Decree Holders in complying terms and conditions of permission, if any granted to them in the past, consideration of application of the Decree Holders seeking permission under Section 118 of the H.P. LR Act in sequel to judgment and decree passed in present matter, acceptance or refusal by the Government of Himachal Pradesh to the Decree Holders 12 2025:HHC:18947 Civil Revision No. 73 of 2021 with regard to permission under Section 118 of the H.P. LR Act, are not the questions involved between the parties to the Execution Petition.
20. The grant of permission, refusal thereof or imposition of penalty upon the Decree Holders is a function to be performed by the Government. It is also apt to record that such consideration by the Government is to be done after filing of application by the Decree Holders.
21. The application by the Decree Holders would be filed only after receiving requisite documents to be supplied and executed by the Judgment Debtor in favour/to the Decree Holders.
22. In absence of any proof or details of the documents claimed to have been supplied by stating so in the objections, it is not established that Judgment Debtor has supplied any documents to the Decree Holders in compliance of judgment and decree passed by the Court.
23. Whether the Decree Holders would be able to get the permission or not, he is entitled or dis-entitled for such permission, it is not permissible to grant permission twice to the Decree Holders; and facing of inquiry by the Decree Holders before Commission set up by the Government with respect to past permission, are the questions unrelated to the Execution Petition preferred by the Decree Holders.
24. The decree sought to be executed is plain and simple whereby Judgment Debtor has been directed to supply/execute the 13 2025:HHC:18947 Civil Revision No. 73 of 2021 documents in favour of/to Decree Holders to enable them to file an application under Section 118 of the H.P. LR Act.
25. There is nothing on record which makes any portion of the decree unexecutable. Other part of the judgment and decree would be executable only after receiving permission under Section 118 of the H.P. LR Act and, therefore, these questions have to be determined at that stage regarding the possibility or impossibility of execution of judgment and decree passed in favour of the Decree Holders.
26. Taking into consideration entire record and pronouncements of the Supreme Court, I am of the considered opinion that there is no material on record to justify the claim of Judgment Debtors for framing issues and to ask the parties to lead evidence in support of objections or in response thereto. In fact the questions raised in the Objection Petition are to be decided amongst or between the Decree Holders or Judgment Debtors.
27. In view of aforesaid discussion, I do not find any merit in the objections as well as present petition preferred by the Judgment Debtors.
28. Accordingly, petition is dismissed with direction to the parties to appear before the concerned Trial Court/Executing Court, Shimla on 7th July, 2025.
29. No fresh separate notices shall be issued to the parties, who are being represented here and failure in appearing before the Trial 14 2025:HHC:18947 Civil Revision No. 73 of 2021 Court/Executing Court shall invite adverse order. In any eventuality, the Executing Court shall proceed further in accordance with law in presence or absence of parties, as the case may be.
The petition stands disposed of in aforesaid terms.
(Vivek Singh Thakur),
20th June, 2025 Judge.
(Keshav)