Punjab-Haryana High Court
Bikram Singh vs Surjit Singh And Ors. on 13 July, 2004
Equivalent citations: (2004)138PLR129
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The revision petitioner is the objector who is none else but son of the judgment debtor. This revision petition is against the order whereby his objections to the execution of the decree for specific performance of the agreement passed against hi father were dismissed.
2. The petitioner has filed objections to the effect that the disputed house is a joint Hindu family and coparcenary property and he along with his family members is residing in the said house for the last more than 15 years. He was never made a party to the suit, the decree of which is being executed by the decree holder. It was the case of the objector that he has legal right to remain in possession of the disputed house.
3. Learned Executing Court dismissed the objections relying upon the certificate issued by the Sarpanch Gram Panchayat on the ground that the petitioner along with his family members is a resident of House No. 1999. Gali No. 3, Bachittar Nagar Colony, Gill Road, Ludhiana for the last 15-16 years. The Court also relied upon a certificate issued by the Gram Panchayat Kokri Kalan where the disputed premises is situated, that the petitioner is not residing in the said village for the last 20 years. The application for obtaining ration card filed by the petitioner was also produced wherein he has been shown to be resident of Ludhiana. Thus, the Executing Court dismissed the objection petition.
4. Before this Court, the petitioner has submitted that the objections filed by the petitioner should not have been dismissed in summary manner without giving an opportunity to the petitioner to produce evidence in support of the averments made in the objection petition. He has relied upon a judgment of this Court in Baljit Singh v. Balkar Singh and Ors., (2001-2)128 P.L.R. 315 and a judgment of Supreme Court in N.S.S. Narayana Sarma and Ors. v. Goldstone Exports (P) Ltd and Ors., (2002-3)132 P.L.R. 552.
5. The primary objection, of the petitioner is that the suit property is a joint Hindu family and coparcenary property and thus, the decree cannot be executed against the petitioner. Decree is of specie performance of the agreement executed by his father. In pursuance of such decree, the sale deed has no been executed so far. The petitioner has no right to intervene in the process of sale at this stage. The coparcenary shall have right to challenge the alienation only after the sale is complete and that would be on execution of the said deed. It has been so held by the Hon'ble Supreme Court in Sunil Kumar v. Ram Parkash, A.I.R, 1988 S.C. 576, that a suit for injunction restraining the Karta of the Joint Hindu Family from joining Hindu property is not maintainable. It was held as the follows effect:-
"The provisions of Section 38 have to be read along with Section 41. Section 41 provides that an injunction cannot be granted in the cases falling under Clauses (a) to (j). Clause (h) thereunder provides that an injunction cannot be granted wheh a party could obtain an efficacious relief by any other usual mode of proceeding (except in case of breach of trust). The coparcener has adequate remedy to impeach the alienation made by the karta. He cannot, therefore, move the Court for an (injunction restraining the karta from alienating the coparcenary property."
6. The fact that the sale is being executed in pursuance of the decree will not make any difference to the principle laid down by the Hon'ble Supreme Court in the aforesaid judgment
7. Other objection is that the petitioner is residing in the suit property. The said objection is either based upon the fact that the residential building cannot be sop in execution of a decree in terms of the provisions of Section 60(1)(ccc) of the Code of Civil Procedure as applicable to Punjab and Haryana or that the petitioner is in possession as co-parcener. The first objection is not tenable even if the averments made in the application are accepted to be correct. What is exempted under Section 60(1)(ccc) of the Code is the sale and attachment of a residential house in occupation of the judgment debtor. The decree in the present case is for specific performance of an agreement for sale of the house, therefore, the residential house is not being attached or sold in execution of the decree but the decree for specific performance is being executed and as a consequence thereof the possession is being sought by the decree holder. Even if the objection raised by the petitioner are presumed to be correct, still he cannot succeed in view of the provisions of the statute. The reasoning given by the trial court cannot be said to be suffering from any material illegality or irregularity.
8. If the petitioner is seeking to resist the execution of the decree as coparcener, he has no legal right to object to the actions of karta except after completion of the sale in accordance with the law as held by Supreme Court in aforesaid judgment.
9. It may be stated that the petitioner has no vested right to insist that the executing court must frame issues before the execution proceedings are adjudicated upon. It is the duty of the executing court to execute the decree and merely because frivolous and vexatious objections are filed with a view to delay and defeat the execution of the decree, it is not necessary that the court must frame issues and grant opportunity to the parties to lead evidence. That will defeat the very purpose of the statute. This court has an occasion of deal with such an argument in Rocky Tyres v. Ajit Jain, (1998-3)120 P.L.R. 53 and held that the purpose of granting an opportunity to prove his case to an objector while entertaining objections under Section 41 read with Order 21 Rules 97 to 108 of the Code of Civil Procedure does not amount to permission for misuse the process of law of court. The discretion must be exercised by the Court in such cases, of course, the discretion is governed by certain principles and must be exercised within four corners of law but such a discretion cannot be termed as a mere routine exercise of judicial discretion. The Court held to the following effect.
"14. It is settled principle of law that it is not incumbent upon the executing court that it must put to trial every objections which are filed in any execution proceeding, even if prima facie they appear to be frivolous, vexatious and are only intended to delay the execution and frustrate the procedure of law or where it amounts to an abuse of the process of the court. In this court in execution Second Appeal No. 2333 of 1996, Bhagwan Singh and Ors. v. Parkash Chand, decided on 7.11.1996. The Court after detailed discussion and following the principles enunciated by the Hon'ble Supreme Court of India in the cases of Babu Lal v. Raj Kumar, J.T. (1996)2 716, Munshi Ram and Ors. v. Delhi Administration, A.I.R. 1968 Supreme Court 702, B. Gangadhar v. B.G. Rajalingam, A.I.R. 1996 S.C. 790, and noticing judgments of various High Court held as under:-
"Now, for considerable period it is not only the judicial trend which has declined to interfere to protect unlawful possession or possession of ranked trespasser etc., but, on the other hand, judicial anxiety has been to give effective relief to the successful parties by expeditious execution of decrees in favour of the parties. Unnecessary prolongation of litigation sometimes results even in frustrating the decree itself, such attempt on the part of the objector to frustrate a decree is a mischief which has to be prevented by due process of law and expeditious decision of such ill-founded and frivolous objections would also be in the interest of justice and within the permissible field of jurisdiction of the execution."
"If frivolous objections of the present kind are permitted to unreasonably and unnecessarily prolong the delivery of possession to a decree holder in accordance with law, it would certainly amount to putting a premium on abuse of process of law."
Thus the carnal principle of law that follows is that the purpose of granting an opportunity to prove his case to an objector while entertaining objections under Section 47 read with Order 21 Rules 97 to 108 of the Civil Procedure Code does not amount to permission for abusing the process of law or court. The discretion must be exercised by the Court in such cases. Of course discretion is governed by settled judicial principles and must be exercised within four corners of law, but such a discretion cannot be termed as a mere routine exercise of judicial discretion. Either way it should be for well founded and settled principles governing the subject."
10. Baljit Singh's case (supra) relied upon by the petitioner is distinguishable as in that case it was not found that the objections are with a view to unreasonably delay the execution of the decree. Hon'ble Supreme Court in N.S.S. Narayana Sarma's case (supra) has traced out the history of the present provisions of Order 21 Rules 97 and 99 of the Code and relied upon earlier judgment of Supreme Court in Silverline Forum (P) v. Rajiv Trust, (1998)3 S.C.C. 723. In that case it was held that court is obliged to determine only such question as may be arising between the parties to a proceeding and that such questions must be relevant to the adjudication of the complaint. In the said case it was found that the appellants are claiming their title to the property as transferee from the pattadars whose land did not vest in the State Government under the provisions of a statute. In Silver line's case (supra), the court held to the following effect:-
"Similarly, a third party, who questions the validity of a transfer made by a decree holder to an assignee, cannot claim that the questions regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resister or the obstructor must legally arise between him and the decree holder. In the adjudication process envisaged in Order 21 Rule 97(2) of the Code, the Execution Court can decide whether the question raised by a resister or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub section."
11. In view thereof, it is apparent that question must legally arise between objector and the decree holder. Since it has been found that the objections raised by the petitioner does not raise any question, it was not obligatory for the executing court to pro vide an opportunity to the petitioner to lead evidence. Consequently, I do not find any merit in the present petition, which is dismissed in limine.