Punjab-Haryana High Court
Birkha vs Phool Singh And Ors. on 21 December, 2001
JUDGMENT M.M. Kumar, J.
1. This is a revision petition filed by petitioner decree-holder Birkha (for brevity, decree-holder) against order dated 19.9.1981 passed by the learned executing court dismissing his application for execution of the decree dated 5.2.1975 for mandatory injunction for removal of cow dung heaps from the disputed site passed in Civil Suit No. 633 of 1973.
2. Birkha decree-holder filed a civil suit for mandatory injunction against the respondent judgment-debtor (for brevity, judgment-debtor) with a prayer for removal of cow dung heaps from the disputed site. It was decreed on 5.2.1975. The appeal filed by the judgment-debtor was also dismissed on 4.4.1978. Thereafter the decree-holder filed an application for execution of the decree. The judgment-debtor raised the objection that the decree has become unexecutable on account of the fact that the status of the decree-holder as tenant has been extinguished and the entries in khasra girdawari showing that he was a tenant on the disputed site were modified by the order of the Collector dated 28.11.1980. It was urged that the decree-holder having lost his status as a tenant, the decree has been rendered unexecutable. The executing court sustained the objection and passed the following order:-
"The only objection pressed before me by Shri M.L.Handa, during arguments are those contained in his subsequent application dated 14.1.1981, which are to the effect that with the change of khasra girdawari from the name of the D.H. by the order of the Collector, the D.H. has lost his status as a tenant and as such the decree has been rendered unexecutable. The submission of Shri Malhotra in reply is that he has filed an appeal against the order of the Collector before the Commissioner. I find that in reply to the objection petition dated 14.1.81, the decree-holder in para 1 has admitted that the decree of the civil court was based on the khasra girdawari entries in favour of the D.H. The relief admittedly was given to the D.H. as tenant. With the change of Khasra Girdawari entries after the decree from the name of the D.H. he ceases to be a tenant. There is no dispute before me that Revenue Officer has jurisdiction to correct khasra girdawari entries during the pendency of the civil suit and even after that. In view of this, no defect can be found in the correction in khasra girdawari entries by a competent officer. If the name of D.H. stands removed from the tenancy, he looses his status as tenant as the decree admittedly was passed on the basis of khasra girdawari entries, once the D.H.ceases to be a tenant, he, it looks, cannot invoke the decree for removal of cow dung cake dumps from the disputed site. I, therefore, hold that the decree has been rendered unexecutable. The issue is decided in favour of the J.D. and against the D.H:"
3. I have heard Shri Y.K. Sharma, leaned counsel for the decree-holder and none has put in appearance on behalf of the judgment-debtor.
4. The only contention raised by Shri Y.K. Sharma, learned counsel for the decree-holder is that any event subsequent to the passing of the decree could not be taken into consideration to conclude that the decree has become unexecutable. He further contended that the order passed by the Collector changing khasra girdawari was the subject matter of appeal before the Commissioner. Therefore, according to the learned counsel, even if it is assumed that in pursuance to the order dated 28.11.1980, the decree-holder has lost his status as tenant, it cannot be said that the aforementioned order is final and conclusive.
5. I have thoughtfully considered the submissions made by learned counsel for the decree-holder and do not feel persuaded to accept the same. Under Section 47 of the Code of Civil Procedure, a judgment-debtor is entitled to raise the objection that the decree has become unexecutable on the ground that the decree-holder has lost the status on which the decree was based. In the present case, it is admitted case of the parties that decree of the civil court was based on khasra girdawari entries showing him as tenant and the relief admittedly was given to the decree holder considering his status as a tenant. It was also admitted that the Collector vide his order dated 28.11.1980 has ordered change in the entries of khasra girdawari, as a result of which the decree-holder ceased to be a tenant.
6. For the view I am taking, I draw support from the judgment rendered in the case of Niranjah Kumar and Anr. v. H.C. Mehta, A.I.R. 1987 Delhi 275. In that case the failure of the decree-holder to obtain the permission for selling of one plot into two portions resulted into sustaining of objection by the executing court that the decree has become unexecutable. The decree was for the specific performance of agreement to sell the plot into two portions. On a revision petition filed by the decree-holder before Delhi High Court, the view taken by the executing Court that the decree had become unexecutable was sustained. Therefore, there is no merit in the argument of the learned counsel for the decree-holder that any subsequent order or change in the status of the decree-holder could not be considered by the executing court for refusing to execute the decree. Moreover, I feel that no useful purpose would be served by executing the decree, once the land on which the decree-holder was a tenant ceased to be under his tenancy.
For the reasons recorded above, this revision petition fails and is dismissed.