GURBHAGAT SINGH Vs. KARAM SINGH

JUDGEMENT

(1.) This appeal is directed against an order of the Additional District Judge, Faridkot, whereby the appeal of the present appellants before that Court was dismissed. The facts relevant to the controversy raised are as follows :

(2.) In a suit for pre-emption filed by Karam Singh and Sukhminder Singh (hereinafter referred to as the decree-holders) a decree was passed against Jagar Singh and Gurdial Singh appellants (hereinafter referred to as the judgment-debtors) on March 3, 1967. After deposit of the pre-emption money on March 10, 1967, in pursuance of the decree, the decree-holders launched the execution proceedings to secure possession of the suit land. The judgment-debtors then filed an appeal against that decree and also moved an application in the executing Court for the stay of the execution of the decree primarily on the ground that their appeal against the said decree was pending before the Appellate Court. The execution Court exceeded to their request vide its order dated March 15, 1967, and directed them to furnish security by March 16, 1967 in the sum of Rs. 5,000/- to make good the loss, if any, with regard to the mesne profits Gurbhagat Singh appellant furnished the requisite security bond on March 16, 1967.

(3.) As the appeal of the judgment-debtors failed, warrant for the delivery of possession to the decree -holders was issued by the executing Court on July 4, 1967. Though the judgment-debtors initially resisted and obstructed the delivery on July 27, 1967 with the help of the police. This conduct of the judgment-debtors led the decree-holders to make an application under Section 145 (wrongly mentioned as Section 146 in the lower Court Judgment) read with Section 151 Civil Procedure Code against the judgment-debtors alongwith Gurbhagat Singh appellant who had furnished the requisite security bond. They claimed recovery of Rs. 1,200/- as mesne profits in addition to Rs. 5,000/-, amount of the surety bond. This claim of theirs was decreed by the Executing Court. Against this order of the executing Court, the judgment-debtors filed the appeal before the Additional District Judge which has been held to be incompetent for the reason that they failed to implead Sukhminder Singh, decree-holder as one of the respondents. It was only on May 9, 1980, that a prayer was made in writing by the judgment-debtors under Order 41, Rule 20 Civil Procedure Code to implead Sukhminder Singh as one of the respondents. This prayer of theirs was declined by the Lower Appellate Court vide its order dated May 19, 1980 and their appeal was finally dismissed on June 6, 1980. Even now this order dated May 19, 1980, is not specifically assailed or shown to be wrong in any way. In fact at the motion hearing of this appeal, it appears the main stand of the learned counsel for the appellants was that their application under Order 41, Rule 20, Civil Procedure Code, had not been disposed of by the lower Appellate Court before finally dismissing the appeal as incompetent. Though this submission of the learned counsel was obviously contrary to the record as I find from the record, as indicated earlier, that the lower Appellate Court passed a detailed order on this application on May 19, 1980, yet the present appeal was admitted. During the course of hearing of the appeal by me, the learned counsel for the appellant was however, allowed to criticise and assail the order dated June 6, 1980, dismissing the application under Order 41, Rule 20 Civil Procedure Code.