Punjab-Haryana High Court
Krishan Dev Syal vs Baba Sain Bhagat Sabha Registered And ... on 8 May, 2012
Author: L.N.Mittal
Bench: L.N.Mittal
ESA No. 8 of 2011 [1]
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
ESA No. 8 of 2011
Date of Decision: 08.05.2012
Krishan Dev Syal ...Appellant
Versus
Baba Sain Bhagat Sabha Registered and others
..Respondents.
CORAM: HON'BLE MR. JUSTICE L.N.MITTAL, JUDGE.
Present : Mr. K.S.Dadwal, Advocate, for the appellant.
Mr. R.K.Joshi, Advocate, for respondent No.1.
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L.N.MITTAL J.(Oral)
CM No. 5260 of 2012 The application is allowed and Annexures R-1 and R-2 are taken on record subject to all just exceptions.
ESA No. 8 of 2011 This is Execution Second Appeal by Krishan Dev Syal one of the objectors.
Respondent No.1 Decree-Holder Baba Sain Bhagat Sabha Registered has filed execution petition against Ram Lubhaya etc. for execution of judgment and decree dated 29.10.1997 passed by the trial Court and affirmed by the First Appellate Court vide judgment and decree dated 22.01.2000 for possession of the suit property.
Appellant and three others filed objection petition Annexure P-4 alleging that they are joint owners in possession of the suit property being among the descendants of original owners Basakhi Ram and Lajpat Rai. Objectors are not party to the decree sought to be executed and therefore, the decree is not binding on them and cannot be executed against them. It was also alleged that decree has been obtained by fraud. ESA No. 8 of 2011 [2]
Objection petition was resisted by filing reply Annexure P-5 controverting the averments of the objectors.
Learned Executing Court vide order dated 01.10.2008 Annexure P-6 dismissed the objection petition filed by the objectors. First appeal against the said order preferred by Krishan Dev Syal objector has been dismissed by learned Addl. District Judge (Adhoc), Fast Track Court, Hoshiarpur, vide judgment dated 25.02.2011. Feeling aggrieved, Krishan Dev Syal objector has filed this second appeal.
I have heard learned counsel for the parties and perused the case file.
Counsel for the appellant contended that Courts below have erroneously observed that the appellant was attorney of defendant No. 9 Sarla Devi whereas infact one Krishan Kumar was attorney of defendant No. 9. There is considerable merit in the contention. Even judgment dated 29.10.1997 Annexure R-1 and decree Annexure P-3 depict that defendant No. 9 Sarla Devi was sued through Krishan Lal attorney and not through Krishan Dev Syal appellant. Thus, the impugned judgments of the Courts below are erroneous and factually incorrect on this aspect.
Counsel for the appellant next contended that the appellant and other objectors are not bound by the decree under execution being not party to the suit and they are claiming independent right in the suit land and therefore, their objections could not be dismissed summarily without adjudication.
Counsel for respondent No.1-Decree Holder contended that many heirs of the alleged original owners of the suit property, namely, Basakhi Ram and Lajpat Rai were party to the suit and therefore, their estate was represented by the defendants and the decree under execution, therefore, is also binding on the objectors who claim themselves to be some of the heirs of the original owners. Reliance in ESA No. 8 of 2011 [3] support of this contention has been placed on two judgments of Hon'ble Supreme Court i.e. Surayya Begum (Mst) Versus Mohd. Usman and others 1991(3) Supreme Court Cases 114 and Mohd. Hussain (dead) by L.Rs. and others V. Gopibai and others 2008(2) RCR(Civil) Supreme Court 129.
I have carefully considered the rival contentions. Admittedly, objectors were not party to the suit in which decree under execution was passed. Consequently, as a general rule, the objectors are not bound by the said decree and, therefore, when they claim their independent title and possession over the suit property, the same has to be adjudicated upon like a suit unless the claim appears to be frivolous and meritless on the face of it. In the instant case, Courts below have rejected the claim of the objectors in a summary manner without adjudicating the same. Consequently, the impugned judgments of the Courts below cannot be sustained because claim of the objectors has not been investigated and adjudicated at all.
As regards contention of learned counsel for respondent No.1-Decree Holder, the same also can be adjudicated upon only when the claim of the objectors is adjudicated by the Executing Court. The objectors have also alleged that decree has been obtained by fraud land they are not bound by the same. Consequently, the Executing Court can adjudicate whether claim of the objectors was also duly represented by the defendants in the suit or not. As a general rule, the objectors being not party to the decree are not bound by the same. If respondent No.1- Decree Holder wants to carve out some exception to the said general rule, it is for respondent No.1 to plead and substantiate the same. It can be done during adjudication proceedings.
ESA No. 8 of 2011 [4]
For the reasons aforesaid, I find that the impugned judgments of the Courts below are completely illegal and unsustainable. Accordingly, the instant Execution Second Appeal is allowed. Impugned order Annexure P-6 passed by the Executing Court and impugned judgment Annexure P-9 passed by the First Appellate Court are set aside and the matter is remanded to the Executing Court for fresh adjudication of the objection petition Annexure P-4 in accordance with law. Parties are directed to appear before the Executing Court on 30.05.2012. The Executing Court shall decide the objection petition as expeditiously as possible and preferably within one year from the date of receipt of a certified copy of this order.
08.05.2012 (L.N.MITTAL) 'ravinder' JUDGE