Punjab-Haryana High Court
Jarnail Singh vs Gurprit Singh on 24 July, 2012
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 3917 of 2012
Date of Decision : July 24, 2012
Jarnail Singh
....Petitioner
Versus
Gurprit Singh
.....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. C.M. Munjal, Advocate.
T.P.S. Mann, J. (Oral)
Order dated 2.4.2012 passed by Civil Judge (Senior Division), Faridkot, while acting as executing Court, has been challenged by the judgment debtor by filing the present revision under Article 227 of the Constitution of India.
Vide impugned order, the executing Court appointed the Court Ahlmad as Local Commissioner with a direction to execute sale deed of the suit land in favour of the decree- holder/respondent through agency of Court on behalf of the judgment debtor/petitioner.
Suit for specific performance of agreement dated 23.6.2005 filed by the respondent was decreed by Additional Civil Civil Revision No. 3917 of 2012 -2- Judge (Senior Division), Faridkot on 5.8.2010. Aggrieved of the same, the defendant-petitioner filed an appeal alongwith which an application for stay was also filed. The lower appellate Court, did not grant any stay. Only notice of the stay application was issued. The respondent then filed an application for execution of the decree which came up for hearing before the executing Court on 13.11.2010, when notice of the same was issued to the petitioner. The petitioner put in appearance on 22.1.2011 and sought time for filing objections. The execution application was, thereafter, taken up on 24.2.2011, 12.3.2011 and 8.4.2011 but no objections were filed by the petitioner. Every time, request was made for adjournment. On 6.5.2011, the petitioner filed his objections. After supplying its copy to the respondent for filing the reply, the executing Court adjourned the proceedings to 6.6.2011. On 6.6.2011, the execution application could not be taken up as Presiding Officer had relinquished the charge on account of promotion. On the adjourned date, i.e. 20.7.2011, the respondent filed his reply to the objections submitted by the petitioner. After hearing the parties, the executing Court vide order dated 4.2.2012 found no merit in the objections submitted by the petitioner and observed that the same had been filed just to delay the disposal of the execution proceedings. The detailed order passed by the Executing Court on 4.2.2012 is reproduced here-in-below:-
"Heard. This order of mine shall dispose off Civil Revision No. 3917 of 2012 -3- the objection petition filed by Objector/JD Jarnail Singh in the present execution application, wherein he has pleaded that an appeal against the judgment and decree dated 5.8.2010 has already been filed by him, which is still pending in the Court of Ld. District Judge, Faridkot for consideration on stay application seeking stay of execution of decree and that the impugned judgment and decree is not executable as it has not attained finality and the matter is still subjudice, as such the present execution application is liable to be dismissed at this stage. It is next alleged by the objector/JD that the khata is still joint and the same has not been partitioned in any competent revenue Court, as such no sale deed can be executed without regular partition of the khata and without asserting the actual share and possession of JD and that if the judgment and decree passed by Ld. Lower Court is executed at this stage, then the objector/JD will suffer a huge loss and his appeal will become infructuous and meaningless and will also cause legal complications and that the present execution application is not maintainable and liable to be dismissed. In the end, it has been prayed that the execution application may kindly be dismissed with costs.
2. The DH vide his reply has opposed the objection-petition and has denied that the Civil Revision No. 3917 of 2012 -4- judgment and decree is not executable and that the Court has not granted any stay and further denied that no sale deed can be executed without regular partition of the khata and without asserting (sic) the actual share and possession of JD. In the end, DH has prayed that the objection petition filed by the JD may kindly be dismissed.
3. I have heard learned counsel for Objector/JD and learned counsel for the decree holder and I have also carefully gone through the record on file.
4. The careful perusal of the file goes to show that the present execution aplication by the DH Gurpreet Singh against the JD Jarnail Singh has been filed on the basis of judgment and decree dated 5.8.2010 delivered in a Civil Suit No. 165 of 16.7.2007 a suit for possession titled as Gurprit Singh Versus Jarnail Singh.
5. After hearing the respective submissions made by the learned counsels for both the parties, I have come to the conclusion that the objection petition filed by the JD/Objector is absolutely without any merit and appears to have been filed just to delay the disposal of this execution application. Moreover, no document whatsoever which may show that the suit land is joint and has not been partitioned so far, has been produced and placed on file by the Civil Revision No. 3917 of 2012 -5- objector/JD. This Court being an Executing Court is supposed to proceed further to execute the decree granted in favour of DH. The JD has filed an appeal, which is pending before learned District Judge, Faridkot, is not a good ground for this Court to stay the proceedings of this execution application on its own, unless and until any order staying further proceedings of this execution application is granted in favour of JD, this Court is to proceed further. No such stay order ever passed by Ld. Appellate Court, has been produced on record by the JD and as such, the present objection petition filed by the objector/JD is hereby ordered to be dismissed being without any merit. Now, case is adjourned to 18.2.2012 for report of Execution Clerk, if the decree holder has deposited the balance sale consideration in the Court or not."
Sd/-
(Gurdarshan Kaur) CJ (SD)/4.2.2012"
Once the executing Court rejected objections submitted by the petitioner, report of execution Clerk regarding deposit of balance sale consideration by the respondent was called for and on receipt of the same draft sale deed was ordered to be filed. The draft sale deed was duly filed on 2.4.2012.
Pursuant to the same, the executing Court, vide impugned order, appointed the Court Ahlmad as Local Commissioner to execute Civil Revision No. 3917 of 2012 -6- the sale deed of the suit land in favour of the respondent. His fee was assessed as ` 1,200/- to be paid by the respondent within a week. The proceedings were adjourned to 12.4.2012 for awaiting report of the Local Commissioner.
In the present revision, the judgment debtor/petitioner has challenged the impugned order on the ground that the procedure as laid down under Order XXI Rule 34 C.P.C. for execution of decree has not been followed by the executing Court. According to the petitioner, once the decree holder had prepared and filed the draft sale deed, it was required to be served on him together with notice requiring him to file his objections. Instead of serving a copy of the draft sale deed upon the petitioner, the executing Court directed the Court Ahlmad to execute the sale deed of the suit land in favour of the decree holder without asking for and waiting for the objections of the judgment debtor.
The procedure relating to decree for execution of document in the nature of sale deed is provided under Order XXI Rule 34 C.P.C., which reads as under :-
"34. Decree for execution of document, or endorsement of negotiable instrument --
(1) Where a decree is for the execution of a document or for the endorsement of a Civil Revision No. 3917 of 2012 -7- negotiable instrument and the judgment-
debtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver the same to the Court.
(2) The Court shall thereupon cause the draft to be served on the judgment-debtor together with a notice requiring his objections (if any) to be made within such time as the Court fixes in this behalf.
(3) Where the judgment debtor objects to the draft, his objections shall be stated in writing within such time, and the Court shall make such order approving or altering the draft, as it may thinks fit.
(4) The decree-holder shall deliver to the Court a copy of the draft with such alterations (if any) as the Court may have directed upon the proper stamp paper if a stamp is required by the law for the time being in force; and the Judge or such officer as may be appointed in this behalf shall execute the document so delivered.
(5) The execution of a document or the endorsement of a negotiable instrument under this rule may be in the following form, namely:-
"C.D., Judge of the Court of Civil Revision No. 3917 of 2012 -8- (or as the case may be), for A.B., in a suit by E.F., against A.B."
and shall have the same effect as the execution of the document or the endorsement of the negotiable instrument by the party ordered to execute or endorse the same;
(6) (a) Where the registration of the document is required under any law for the time being in force, the Court, or such officer of the Court as may be authorized in this behalf by the Court, shall cause the document to be registered in accordance with such law.
(b) Where the registration of the document is not so required, but the decree-holder desires it to be registered, the Court may make such order as it thinks fit.
(c) Where the Court makes any order for the registration of any document, it may make such order as it thinks fit as to the expenses of registration."
It is true that after the draft sale deed had been filed by the decree holder, the executing Court did not deliver its copy to the judgment debtor requiring him to file objections. However, from the order dated 4.2.2012 passed by the executing Court, as noticed above, it is clearly made out that the judgment debtor had already availed his remedy of filing objections even before Civil Revision No. 3917 of 2012 -9- the filing of the draft sale deed. His objections were duly considered and rejected by the executing Court by passing a detailed order, as reproduced above. Once his objections have been dealt with and found to be without any merit, the judgment debtor cannot legitimately object to the draft sale deed. Therefore, as his objections had already been considered and rejected, he cannot object to the draft sale deed at a subsequent stage by requiring the service of the draft sale deed upon him and giving him an opportunity of raising his objections afresh. The sole motive of the judgment debtor/petitioner in coming up with the objections regarding non-supply of draft sale deed is for the limited purpose of delaying the disposal of the execution.
In view of the above, no interference is called for in the impugned order passed by the executing Court.
The revision is without any merit and, accordingly, dismissed.
( T.P.S. MANN )
July 24, 2012 JUDGE
satish