AVINASH CHANDER Vs. HAZURA SINGH

JUDGEMENT

(1.) This is a revision petition filed by the decree -holder against the order dated 13.10.1980 passed by the Executing Court dismissing his execution application, wherein prayer was made that the executing court may issue warrant of possession against the respondent -judgment -debtors.

(2.) In order to appreciate the controversy in proper prospective. It is important to make a brief reference to the facts of this case, which led to the passing of a decree on 12.4.1960. One Dalla Mal had two sons namely Labhu Ram and Khushi Ram. Khushi Ram died issueless on 25.10.1964 and Labhu Ram had one son namely Kewal Krishan. Labhu Ram died on 1.12.1959. Labhu Ram and Khushi Ram had effected some partition of their joint property on 1.10 -1945. On 10.1.1950 Kewal Krishan and his two minor sons Avinash Chander and Subhash Chander filed a civil suit to enforce their right to share in the joint family property by recovery of joint possession of moveable and immovable properties and for declaration that the aforementioned partition alleged to have been effected between Labhu Ram and Khushi Ram on 1.10.1945 or any other date was bogus, factitious and fraudulent. Their suit was decreed by the trial Court on 25.6.1954. The appellate Court decided the appeal on 12.4.1960. After the case had dismissed in appeal in the High Court on certain points, the case of the decree -holder set up before the executing Court that the decree for declaration and setting aside the partition between Labhu Ram and Khushi Ram and for joint possession of the properties mentioned in the plaint as passed by the trial Court was confirmed and the other relief like rendition of account and perpetual injunction was given up by Kewal Krishan and his sons, it is further asserted before the executing Court that the properties not even mentioned in the plaint and all the moveable and immovable properties of the family that may come to light later on belonging to Labhu Ram and Kewal Krishan would also be covered by the decree. The widow and the daughters of Labhu Ram, who were im -pleaded after the death of Labhu Ram have given up their claim. It was further alleged that during the trial of the suit, the properties which are subject matter of the execution petition and the details of which have been given were alienated by Labhu Ram and Kewal Krishan and that the decree -holder took possession of all other properties as decreed in their favour. It is further claimed that Subhash Chander was minor on 12.4.1960 when the District Judge passed the final order and he attained majority on 1.5.1966 i.e. after the Limitation Act, 1963 came into operation. Therefore, it is claimed that the execution application in accordance with the provisions of new Act was within time and was maintainable. It is asserted that the rule of lis pendis envisaged by Sec. 52 of the Transfer of Property Act, 1894 would apply to the transfer made during the pendency of litigation and thus alienations were void.

(3.) The executing Court struck seven issues and issue Nos. 1 to 5 were decided against the petitioners - decree -holders. Issue No. 1 was as to whether the execution application could proceed against the objectors -judgment -debtors and issue No.2 was as to whether objector -respondent No. 3 Vir Bhan @ Veer Chand s/0 Arjan Dass purchased the plot No.47 from Labhu Ram and Khushi Ram JDs in good faith and for consideration and without notice and the issue No.5 was with regard to whether the execution application is time barred. On all the aforementioned three issues, the executing court returned findings against the decree -holders.