Punjab-Haryana High Court
Yogeshwar Education Trust vs Simarjit Kaur And Ors. on 28 July, 2003
Equivalent citations: (2003)135PLR114
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. Sarvshri Darbara Singh, Sewa Singh and Dalbir Singh purchased land measuring 131 kanals 10 marlas in the year 1967. Two separate suits were filed for possession by way of pre-emption by Smt. Surbi and Smt. Giano. Learned trial court decreed both the suits on 20.10.1972. The appeal was also dismissed. Regular Second Appeal was also dismissed by this court on March 8, 1982. However, Hon'ble Supreme Court set aside the judgment and decree of pre-emption passed in favour of the plaintiffs on 10.7.1995 and the suit for pre-emption was dismissed.
2. After the suit of pre-emption was decreed by the Hon'ble Supreme Court, the pre-emptors had taken over physical possession of the land in May 1982 and sold the same in favour of the present petitioners on 4.7.1982. On 15.5.1988, vendees i.e. Sewa Singh, Dabbir Singh and Darbara Singh filed an application under Section 144 of the Code of Civil Procedure for restitution of possession of the land which was taken by the pre-emptors in May, 1982. It may be noticed that two of the vendees namely Sewa Singh and Dalbir Singh had died on 7.6.1997 and 16.2.1997 respectively but the application for restitution of possession was filed by all the three vendees. It was only on 14.5.2002 that an application was filed by the legal representatives of Sewa Singh and Dalbir Singh to be impleaded themselves as parties in the restitution application. Learned executing court vide order dated 20.11.2002 permitted the legal representatives of deceased Sewa Singh and Dalbir Si'ngh to proceed further with the application filed under Section 144 C.P.C. It is the said order which is challenged by the petitioner by way of the present revision petition.
3. The learned counsel for the petitioner has vehemently argued that the application under Section 144 CPC for restitution of possession, was filed by all the three vendees whereas two of them had admittedly died prior to the filing of the application, therefore, such an application was not maintainable. It is further argued that application to bring the legal representatives of the deceased had been filed almost 4 years after the filing of the application under Section 144 CPC which is, thus, beyond the period prescribed of three years. It is further argued that even an application under Order 1 Rule 10 CPC could be moved by the LRs to implead themselves as parties within a period of 3 years. Reliance was placed on State of Kerala v. Sri Devi, 2002(2) Civil and Rent Judicial Reports 587.
4. Controverting the arguments of the petitioner, Shri Raj Kumar Gupta, learned counsel appearing for the respondent, stated that in fact one of the applicants was competent to file application on behalf of all the other applicants. It was stated that application for restitution of possession is in the nature of the execution and thus one of the applicants was competent to file the execution for the benefit of all the decree holders. Reliance was placed on the provisions of Order 21 Rule 15 CPC. It was also argued that legal representatives of the decree holders are not required to be impleaded as the provisions of Order 22 Rules 3 and 4 CPC are not applicable in execution proceedings. It was thus contended that the original application for restitution of possession can be treated to be on behalf of one decree holder for the benefit of all the decree holders. Subsequently, the other legal representatives of other decree holders can come on record to seek restitution of the property. Learned counsel for the respondent has relied upon Attra v. Ram Singh, 1995 P.L.J. 9 for the said proposition.
5. After hearing learned counsel for the parties and perusing the record of the case, I find that the order passed by the learned executing court does not suffer from any material illegality or irregularity warranting interference in exercise of the revisional jurisdiction.
6. Admittedly, the judgment and decree of possession in favour of the plaintiff has been set aside by the Hon'bie Supreme Court on 10.7.1995. Thereafter, the vendees have moved an application for restitution of the possession, In terms of Order 21 Rule 15 CPC, one of the decree holders is entitled to apply for execution of the whole decree for the benefit of all of them. The provisions of Order 21 Rule 15 CPC read thus:-
15. Application for execution by joint decree holders.- (1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased.
(2) Where the court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interests of the persons who have not joined in the application.''
7. In view of the above, one of the decree holders namely Darbara Singh was competent to apply for the execution of whole of the decree for the benefit of all the decree holders. Once, the decree of pre-emption has been set aside, the vendees, as a matter of right, are entitled to restitution of possession of the entire property purchased by them for valuable consideration in the year 1967.
8. It could not be disputed by the learned counsel for the petitioner that application for restitution of possession, after the Supreme Court dismissed the suit, is in the nature of execution. However, reference may be made to the judgment of this court reported as Attra v. Ram Singh, 1985 P.L.J. 9 (supra) wherein it has been held that application for restitution is in the nature of execution. Once it is so, then whether the legal representatives are brought on record at the time of tiling of the application or thereafter is wholly inconsequential. Provisions of Order 21 Rules 3 and 4 are not applicable in execution proceedings as provided under Order 22 Rule 12 CPC.
9. The argument that application for impleading legal representatives has been filed after three years, is not tenable for the reasons mentioned above. The decree holders could seek execution within 12 years of the decree. The legal representatives' application is within said period. As a matter of fact, legal representatives in the present case are only pro forma parties and one of the decree holders is competent to execute decree for benefit of all.
10. In view of the above, the view taken by the learned executing court calls for no interference in exercise of the revisional jurisdiction.
11. Dismissed.