Punjab-Haryana High Court
Karan Singh vs Rachhpal Singh on 22 August, 2001
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. This R.S.A. has been directed against the judgment and decree dated 23.10.1999 passed by the Court of Additional District Judge, Gurdaspur who, affirmed the order dated 3.8.1996 passed by the Court of Civil Judge, Senior Division, Gurdaspur who allowed the application of respondent No. 1 for passing the final decree.
2. Some facts can be noticed in the following manner : Shri Rachhpal Singh, respondent No. l filed an application for the framing of final decree of possession by redemption of the land measuring 66 kanals 14 marlas fully described in the head note of the application, Situated in the revenue estate of village Bhatoa, Tehsil and District Gurdaspur and it was inter alia pleaded in the application by the decree-holder that he filed a civil suit No. 3l of 1971 in which a preliminary decree was passed by the Court of Additional District Judge, Gurdaspur on 15.3.1986. It is further averred that earlier he filed a suit which was dismissed by the Court of Senior Sub Judge, Gurdaspur on 30.12.1982. He filed an appeal against the judgment and decree of the Court of Senior Sub Judge, Gurdaspur and his appeal was allowed on 15.3.1986 and decree for possession by way of redemption of the suit land on payment of Rs. 5,638.40 was passed against the judgment-debtors. The present appellants filed an appeal in the Hon'ble High Court which was also dismissed on 10.11.1986. Since the preliminary decree had become final, therefore, respondent No. l made a prayer that the decree be affirmed and final decree be prepared and on the basis of the final decree he may be given the possession.
3. Notice of the application was given to the respondent (now appellants) who filed the reply and denied the allegations. According to the respondent-appellants, the application was not legally maintainable as the preliminary decree was passed with respect of the land measuring 66 kanals 14 marlas whereas the total land mortgaged was 111 kanals 14 marlas as per jamabandi for the year 1962-63 and in these circumstances, the preliminary decree passed by the Court of Additional District Judge cannot be enforced. Moreover, the same has been obtained by fraud after tendering bogus documents with forged seals of Government of Pakistan. With these prayer the respondents now appellants prayed for the dismissal of the application.
4. The parties addressed arguments before the executing Court and vide order dated 3.8-1996, the application was allowed. The reasons given by the Executing Court was contained in paras No. 4, 5, 6 and 7 of the order dated 3.8.96 which are produced as under :-
"4. The learned counsel for the respondents-judgment debtors has argued that issue should be framed in the present application and the parties should be allowed to lead evidence, but the record shows that my learned predecessor Shri S.L. Mittal, vide order dated 13.3.1996 dismissed the application filed by the respondents for framing the issues. There is nothing on the file to show that the respondents preferred any appeal or revision against the order dated 13.3.1996.
5. Otherwise this Court cannot go behind the decree and decree passed by the learned Additional District Judge, dated 15.3.1986 has become final as appeal preferred by the respondent was dismissed by the Hon'ble High Court on 10.11.1986-It is admitted that the appeal preferred by the respondents in the Hon'ble Supreme Court was also dismissed.
6. The executing Court cannot go behind the decree even if it is erroneous by law on facts. For this, 1 rely upon V.D. Nodi v. R.A. Rehman, A.I.R. 1970 S.C. 1475, wherein it has been so held by their Lordships:
"Civil P.C. (190S) Section 38 - Court executing decree - Decree binding cannot go behind decree even if it is erroneous in law or on facts."
1 further rely upon Stated of Stale of Punjab v. Kartar Singh, 1989(2) Revenue Law Reporter 94, wherein it has been so held by their Lordships:-
"Scope and applicability - Decree silent with respect to payment of interest - Court shall deemed to have refused such interest - Executing Court cannot go behind the decree - Decree has to be executed without any additions or alterations either on ground of equity or on ground of morality."
I also rely Raj Kumar v. Nand Lal, (1992-2)102 Punjab Law Reporter 608, wherein it has been so held by their Lordships:-
"Civil Procedure Code (V of 1908) Order 34 Rule 8 - Preliminary decree passed and confirmed in respect of the entire property final decree has to be passed in terms thereof. Not open now to contend that the property on the second floor and the portion abutting the road on the first floor was not a part of the mortgaged property."
7. Thus, it is not open to the respondents-judgment debtors to say that the preliminary decree is in part. This Court is to execute the decree with regard to the land measuring 66 kanals 14 marlas as the same has been confirmed by the Hon'ble High Court. So, the executing Court cannot go behind the decree. Hence this application is accepted. The mortgage amount has been has been deposited by the applicant-decree holder. Hence, this application for passing of final decree in civil Suit No. 3l of 11.1.1971 decided on 15.3.1986 is passed in favour of the applicant and against the respondents. Let the final decree be prepared and then file the consigned to the record room."
5. Not satisfied with the order dated 3.8.1996, the appellants filed the first appeal before the Court of Additional District Judge, Gurdaspur, who, dismissed the appeal. Still not satisfied with the order of the first appellate Court, the present Regular Second Appeal.
6. I have heard Shri Sanjeev Gupta, learned counsel appearing on behalf of the appellant and Shri S.P, Gupta, Senior Advocate, appearing on behalf of the respondent No. l and with their assistance have gone through the record of this case.
7. It is well settled principle of law that no amount of argument can be addressed which is beyond the pleadings of the parties and I am of the opinion that majority of arguments addressed by the learned counsel for the appellants are totally irrelevant and beyond the points taken in the written reply. It is equally well settled principle of law that the executing Court cannot go behind the decree and the principle of res-judicata are also applicable to the execution proceedings. Still the learned counsel for the appellants has raised several points and in my opinion, these could not be raised at this stage because all this points could be raised during the contest of the suit.
8. The points raised by the learned counsel for the appellants were that the plaintiffs suit was beyond limitation: that he had no locus standi to file the suit for possession by way of redemption: that the executing Court can look into the pleadings of the parties and further can look not as to whether any fraud has been played upon the Court or not. In support of his contention, the learned counsel for the appellants has drawn my contention to the authorities reported as A.I.R. 1965 S.C. 1325, S.P. Chengalavarya Naidu v. Jagan Nath, (1995-1)109 P.L.R. 293, (1992)2 Supreme Court Cases 679 and 1985(1) P.L.J. 558. All these cited judgments are totally off the track specially in view of the fact that the preliminary decree passed by the Court of Additional District Judge has attained the finality up to the Hon'ble Supreme Court. The only point which in my opinion, was relevant, has already been discussed by the first appellate Court and that point was that as per the terms of the decree, the decree-holder was supposed to deposit the decretal amount upto 15.6.1986. It is stated that 15.6.1986 was Sunday. Judicial notice can also be taken that in Punjab the Civil Courts remain closed from 16th June upto 15th July of every year and this is called "no work period" on account of summer vacations. In these circumstances, It was always open to the decree-holder to deposit the amount on the opening of the Court. This aspect of the case has rightly be considered by the first appellate Court in the impugned order.
9. In this view of the matter, I do not see any merit in this appeal and dismiss the same at the motion stage with costs of Rs. 5000/- as costs. The directions are given to the Executing Court to deliver the possession to the decree holder by police force.