KASTURI DEVI Vs. HARBANT SINGH

JUDGEMENT

(1.) This is a Revision Petition against the order dated 20-2-1999 passed by the Executing Court dismissing the objections filed by the petitioners.

(2.) The facts, which are relevant, for the decision of the present revision petition are that Harbant Singh had filed a suit for permanent injunction against Balbir Singh, Girdhari, Mahabir and Om Parkash-Defendants. During the pendency of the suit defendants Nos. 2 and 3 namely Girdhari and Mahabir were reported to be dead and accordingly they were given up. The other two defendants i.e. 1 and 4 namely Balbir Singh and Om Parkash had initially put in appearance but later on they did not put in appearance and consequently they were proceeded against ex parte. Thereafter the plaintiff produced ex parte evidence and after hearing the counsel for the plaintiff, the learned trial Court vide judgment and decree dated 18-12-1992 decreed the suit of the plaintiff ex parte against defendants 1 and 4 namely Balbir Singh and Om Parkash and they were restrained from interfering into the cultivating possession of the plaintiff over the suit land except in due course of law. Subsequently Harbant Singh decree holder moved Execution Petition dated 18-12-1995 against Balbir Singh and Om Parkash defendants (judgment-debtors), alleging therein that after the harvest of Kharif-1995 the judgment-debtors had forcibly dispossessed the decree holder from the suit land and as such the possession of the suit land be got delivered back to the decree holder.

(3.) During the pendency of the said Execution Petition, Om Parkash defendant- judgment-debtor filed objections in the said execution petition, alleging therein that he was the lawful owner and in possession of land in dispute since 31-1-1989 on the basis of the sale deed and that Harbant Singh decree-holder had nothing to do with the suit land. It was further alleged that in fact Om Parkash was in actual physical possession of the land in dispute prior to the filing of the suit, during the pendency of the suit and even now. It was alleged that the execution petition for the execution of the decree dated 18-12-1992 was liable to be dismissed. The objections filed by Om Parkash- Judgment-debtor were dismissed by the Executing Court vide order dated 11-1-1999. Aggrieved against this order of the Executing Court Om Parkash- Judgment-debtor filed Civil Revision No. 315 of 1999 in this Court which was dismissed by Hon'ble Mr. Justice V.S. Aggarwal, vide order dated 21-1-1999, holding that if a decree for prohibitory injunction had been passed, the Court will always have the power to set the wrong right and in case the decree-holder had been dispossessed after the passing of the decree, the Court will not be powerless, and would have the power to restore the possession in an appropriate case. After the objections filed by Om Parkash were dismissed by the Executing Court and the revision filed by Om Parkash was also dismissed by this Court, the present petitioners namely Smt. Kasturi Devi mother of Mahabir Parshad and Kalu Ram son of Girdhari filed third party objections before the Executing Court, alleging therein that during the pendency of the suit filed by Harbant Singh, Mahabir Parshad and Girdhari defendants had died and they were given up without impleading their legal representatives i.e. objectors namely Smt. Kasturi Devi mother of Mahabir Parshad and Kalu Ram son of Gidhari. It was further alleged that the decree passed by the trial Court was not binding on the present objectors. It was further alleged that Balbir Singh defendant, who was the owner of the property in dispute, had mortgaged the land in question with possession with Girhari Lal and later on the land was purchased by Om Parkash and Mahabir and at no point of time Harbant Singh come in possession of the land in question as a tenant or otherwise. It was alleged that the warrants of possession issued in favour of Harbant Singh decree holder could not be executed against the objectors who were in possession of the land in dispute. The said objection petition was contested by Harbant Singh decree-holder by filing a reply. The learned Executing Court after hearing both sides and after perusing the record dismissed the objection petition vide order dated 20-2-1999. Aggrieved against this order of the Executing Court, the objectors namely Smt. Kasturi Devi and Kalu Ram filed the present revision petition in this Court.