Himachal Pradesh High Court
Hardeep Kaur Gandhi And Others vs Ajit Lajwanti Gujral Trust And Others on 7 September, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Revision No. 7 of 2015.
Reserved On: 17/08/2016
.
Date of decision: 07.09.2016
Hardeep Kaur Gandhi and others
.....Petitioners./JDs
Versus
Ajit Lajwanti Gujral Trust and others
of
....Respondents./DHs.
Coram
The Hon'ble Mr.Justice Sureshwar Thakur, J.
rt Whether approved for reporting?1 Yes.
For the petitioners/JDs: Mr. Vinay Kuthiala, Sr. Advocate with Mr. Gaurav Sharma, Advocate.
For the respondents/DHs: Mr. Neeraj Gupta, Advocate for respondents No. 1 and 2.
Sureshwar Thakur, J.
The decree qua the suit land rendered by the Court of first instance vis.a.vis the plaintiffs, christened as a 'Trust' attained affirmation upto the Hon'ble Apex Court. Sequelly, the relevant decree acquired conclusivity. The plaintiffs/decree holders had thereupon constituted an apposite execution petition before the learned Executing 1 Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 21:11:14 :::HCHP 2Court, for theirs in the manner unraveled therein begetting its apposite execution. Under its impugned rendition, the learned Executing Court .
ordered for issuance of warrants of possession qua the suit property, warrants of possession whereof hold concurrence with the apposite judgement and of decree put before it for execution. The judgement debtors/defendants stand aggrieved by the rt rendition of the learned Executing Court rendered on 3.1.2015. Succinctly their concert to impugn its validity rests upon the learned Executing Court in a mechanical, perfunctory besides in a rough shod manner making short shrift of their paramount objections qua its executability, objections whereof stood harboured upon the factum of the plaintiffs/decree holders casting a suit qua the suit property as 'a Trust', alienation whereof qua it remaining un-preceded by an apposite permission under Section 118 of the H.P. Tenancy and Land Reforms Act standing accorded by the appropriate Government, holding a concomitant effect of the ::: Downloaded on - 15/04/2017 21:11:14 :::HCHP 3 alienation by its author of the corpus of the trust property vis-à-vis the plaintiffs standing vitiated, also a contention is raised qua want of apposite .
permission preceding its creation renders the suit being amenable to founder also thereupon the decree under execution qua the suit property of stood rendered unamenable for execution given the inevitable statutory consequence, befalling it, rt qua its standing forfeited qua the appropriate Government, consequence whereof spurred from the aforesaid purported infraction of the apposite mandatory statutory provisions. The aforesaid objections raised by the judgement debtors/defendants qua the executability of the decree stood rejected by the learned Executing Court on the anvil of the decree under execution acquiring conclusivity, it standing affirmed upto the Hon'ble Apex Court. The learned Executing Court hence did not deem it fit to render an adjudication upon the trite objections aforesaid whereupon solitarily the counsel for the ::: Downloaded on - 15/04/2017 21:11:14 :::HCHP 4 defendants/JDs anvils his submission for rendering unexecutable the decree put for execution before the learned Executing Court. Uncontrovertedly .
the learned Executing Court stood not enjoined under law to go behind the decree, also its omitting to pronounce a verdict upon the of objections reared therebefore by the judgement debtors qua the facet aforesaid would hold rt validation unless the objections aforesaid reared therebefore by the judgement debtors devolved upon the executability of the decree, it holding no legal efficacy also it being void nonest, vices whereof ingraining it standing grooved in no title qua the suit property inhering in the plaintiffs/DHs, hence rendering it unexecutable.
The learned Executing Court was under a profound legal obligation to not go behind the decree rather it peremptorily stood warranted to execute it.
Without making any observation qua the tenacity of the objections aforesaid addressed herebefore by the counsel for the JDs qua the relevant decree ::: Downloaded on - 15/04/2017 21:11:14 :::HCHP 5 standing infused with a pervasive vice of voidness hence it being unexecutable lest it casts any influence upon the learned Executing Court, yet .
the paramount factum of the plaintiffs suing qua the suit property christened as 'a Trust' wherebefore its constitution also preceding its of author alienating thereunder the corpus of the suit property qua it his prima facie not obtaining the rt mandatory statutory permission of the appropriate Government may prima facie render the alienation of the corpus of the suit property by its author to the trust, to suffer the mishap of the consequences embodied in Section 118 of the H.P.Tenancy and Land Reforms Act, tritely the one of the corpus of the trust property suffering the ill-
fate of its warranting forfeiture to the appropriate Government. However, any determination qua the facet aforesaid is enjoined to be rendered by the learned Executing Court on its appraising the tenacity of evidence adduced therebefore by the JDs qua the relevant issue struck by it. The mere ::: Downloaded on - 15/04/2017 21:11:14 :::HCHP 6 factum of the apposite decree acquiring conclusivity it standing affirmed upto the Hon'ble Apex Court would not per se render it executable .
nor would any decree be executable if rendered in derogation of mandatory statutory provisions whereupon a pervasive cloud qua its legality is of cast also with the paramount prevalence of mandatory statutory provisions vis.a.vis the rt apposite decree put to execution whereupon a telling effect stands engendered qua the holding of an indefeasible title by the plaintiffs qua the suit property also infraction if any of the mandatory statutory provisions whereupon the relevant objections stand anchored loudly pronounce upon the capacity of the plaintiffs to sue qua the suit property, are all inhibition which prima facie cumulatively render it to be obviously unexecutable. In taking a view of the apposite decree holding prevalence vis-à-vis the relevant statute whereunder a relevant bar stands embodied against the constitution by its author of ::: Downloaded on - 15/04/2017 21:11:14 :::HCHP 7 the relevant trust qua the suit property unless prior thereto the apposite mandatory statutory permission from the appropriate Government .
stands obtained, would obviously entail an ill-
consequence, of Courts of law undoing the effect of binding statutory law whereas reverence of thereto ought to upsurge in all judicial pronouncements. For meteing deference to the rt relevant statutory provisions also for ensuring prevalence of statutory laws vis.a.vis the apposite decree besides to countervail the ill-consequence of the plaintiffs putting to execution a decree prima facie infused with a pervasive vice of voidness, it standing rendered vis.a.vis the plaintiffs who for reasons aforesaid prima facie hold no title qua the suit property, it was incumbent upon the learned Executing Court to qua the trite objections aforesaid laid therebefore by the JDs qua the executability of the decree, frame an issue thereupon whereafter also it was enjoined to ask for adduction of evidence thereon ::: Downloaded on - 15/04/2017 21:11:14 :::HCHP 8 by the contesting parties. However, the learned Executing Court has omitted to do so. Its omission to rid of sanctity, the trite objections .
aforesaid raised therebefore by the JDs/defendants has sequelled gross miscarriage of justice significantly when they invasively strike at of the validity of the title of the plaintiff qua the suit property also impinge upon its right to sue, as a rt corollary when hence they cast aspersion qua the executability of the decree. The legal principle as meted by it to not render a verdict upon the objections aforesaid raised therebefore by the defendants stood anvilled upon its standing interdicted to go behind the apt conclusive decree yet the meteing of deference by it to the aforesaid principle, has begotten a conflict with the overwhelming paramount legal principle of a prima facie void nonest decree, stains whereof stand concerted by the JDs/defendants in their apposite objections, to permeate it, being hence un-executable. However, the aforesaid facet of ::: Downloaded on - 15/04/2017 21:11:14 :::HCHP 9 the apposite decree being hence unexecutable enjoined its standing rested by a judicial verdict standing pronounced thereupon by the learned .
Executing Court. However, the learned Executing Court in a short shrift manner dismissed the trite objections aforesaid qua the executability of the of decree, whereas they pervasively purportedly afflicted the decree with a vice of voidness, also rt concomitantly prima facie rendered it unexecutable. As a corollary, its not rendering an apposite verdict thereupon nor preceding thereto its casting any apposite issue qua it, whereupon the contesting parties were permitted to adduce evidence, renders its impugned rendition to suffer from a vice of thorough non application of mind, hence warranting its being quashed and set-aside.
Even though the learned counsel appearing for the decree holders has relied upon a judgement of this Court reported in M/s K. N.Trading Company Vs. Masonic Fraternity of Shimla 1995 (2) Sim. LC 342 to contend of the learned Executing Court when ::: Downloaded on - 15/04/2017 21:11:14 :::HCHP 10 seized with an execution petition laid therebefore by the decree holder for putting to execution the relevant executable decree it holding no .
empowerment to strike any issue qua any objection raised therebefore qua the suit property not by a person not a party to the suit rather by of one who claims title to the suit property through the judgement debtor. The aforesaid rendition relied rt upon by the learned counsel for the plaintiffs/DHs to protect the impugned rendition of the learned Executing Court holds no clout given therein of conclusive decrees for eviction standing rendered vis.a.vis a landlord qua the demised premises, decree whereof when stood put to execution before the learned Executing Court, any resistance qua its execution by the JD, on anvil of his inducting sub-lessee in the demised premises stood discountenanced, on the anvil of it being a specious attempt to baulk the execution of a conclusive decree also on anvil of the apposite objections of the JD if standing vindicated would ::: Downloaded on - 15/04/2017 21:11:14 :::HCHP 11 beget the ill-fate of decrees of eviction of a tenant from the demised premises suffering unwarranted/untenable stiff resistance qua their .
execution by the JD on an untenable ground of his subletting the premises whereas with the sub-
lessees standing inducted in the demised premises of by the JD also are bound by the relevant decree qua the demised premises. The aforesaid rt discountenancing by this Court in the citation aforesaid of the objection of the Judgement debtor stood prodded for obviating multiplicity of litigation also to not frustrate a decree holder to under a conclusive decree of eviction rendered against the tenant obtain its possession.
Obviously in the citation aforesaid, the trite objections of the decree thereunder being unexecutable, its standing ingrained with a vice of no title inhering in the decree holder vis.a.vis the demised premises stood neither raised nor was at contest, contrarily the distinctive facet hereat qua the executability of the decree, it for reasons ::: Downloaded on - 15/04/2017 21:11:14 :::HCHP 12 aforestated being void besides nonest, imperatively warranted the learned Executing Court to render an adjudication thereupon. Also .
the learned counsel appearing for the DHs relied upon a judgement reported in Phenu Ram vs. Sanatan Dharam Sabha (Regd.) and others Latest of HLJ 2014 (HP) 221 wherein this Court in a decree for eviction of a tenant from the demised premises rt had dispelled the vigour of a contention raised before the learned Executing Court by a person other than the judgement debtor, contention whereof qua the executability of the decree stood anvilled on his holding its possession also stood anvilled on his claiming rights through the judgement debtors where-against a conclusive executable decree qua their eviction from the demised premises stood put to execution. A reason similar to the one accorded by this Court in the aforesaid judgement stood assigned by it to disrobe the efficacy of the contention raised by a person resisting the execution of a decree of ::: Downloaded on - 15/04/2017 21:11:14 :::HCHP 13 eviction rendered against the JDs whereunder he claimed possession of the demised premises, preeminently when it stood unflinchingly .
established qua his claiming the relevant possession under the relevant judgement debtor where-against whom a conclusive decree qua the of relevant premises stood pronounced. Imminently also when the question of title of DHs to obtain rt the relevant decree stood not contested by the JDs nor also when its stood contested qua the decree being hence unexecutable, whereas contradistinctively hereat, the aforesaid relevant contest stands projected by the JDs in their relevant objections preferred before the learned Executing Court, necessarily it was incumbent upon the learned Executing Court to pronounce a verdict thereupon. Consequently, both the aforesaid citations are distinguishable, also are not applicable for facilitating this Court to render an apt adjudication upon the efficacy of the impugned rendition hereat. Accordingly the instant revision ::: Downloaded on - 15/04/2017 21:11:14 :::HCHP 14 petition is allowed. The impugned order is quashed and set-aside. The learned trial Court is directed to frame an issue on the objections raised .
before it by the judgement debtors/defendants qua vice of nullity on facet aforesaid ingraining the decree put to execution before it vice whereof of ingraining it stands anvilled upon statutory infraction of the mandate of Section 118 of the rt H.P.Tenancy and Land Reforms Act. It shall permit the parties to adduce their respective evidence thereupon. It is directed to decide the Execution Petition besides the objections in accordance with law within three months hereafter. However, it is made clear that any observation made hereinabove will have no bearing on the merits of the case.
7th September, 2016. (Sureshwar Thakur) ™ Judge.
::: Downloaded on - 15/04/2017 21:11:14 :::HCHP