NARESH KUMAR Vs. NARINDER SINGH AND ANOTHER

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution of India challenges the order dated 5.2.2011 (Annexure P-1) passed by the executing court whereby an application filed by the petitioner for framing of issues on the objections raised by him had been declined.

(2.) Briefly stated, the facts necessary for adjudication of the present petition are that respondent No.1 filed a suit for mandatory injunction and permanent injunction against respondent No.2 alleging that she was a licensee in the premises in question. The said suit was decreed by the trial court vide judgment and decree dated 11.10.2003. The said suit was filed only to grab the property of the petitioner who was in actual physical possession of the same under legal documents executed in his favour by the real owners of the property. On coming to know of the said decree dated 11.10.2003, the petitioner filed objections dated 24.8.2009 pleading that the property in question had been allotted to Dr. Surat Chander by Ludhiana Improvement Trust vide letter dated 8.12.1978 on installments and that during his life time, Dr. Surat Chander had got raised construction in the house in the suit property and he expired intestate on 9.1.1994. The original allotment letter and receipts of the payments were in possession of the legal heirs of Dr. Surat Chander-the allottee. It was pleaded in the objection petition that at the time of death of Dr. Surat Chander, his children were minor and as such his widow Ramesh Kumari and children could not manage the affairs of the suit property as she was unable to come to Ludhiana from Chandigarh to look after the suit property. Therefore, the legal heirs of Dr. Surat Chander voluntarily sold the suit property to the objector vide an agreement to sell dated 16.3.2004 for settled sale consideration of Rs.1,00,000/- and had received Rs.20,000/- as earnest money from the objector and delivered the actual and physical possession of the property to the objector and authorized him to collect the rent from the tenants occupying the two shops abutting the front side of the suit property. Since 16.3.2004, the objector was in actual physical possession of the property and electricity connection bearing account No. W51AN201369X was installed in the suit property in the name of the objector. It was further pleaded that the decree holder absolutely had no concern with the property in suit and he claims to be the owner of the said property on the basis of forged and fabricated sale agreement and that the alleged decree dated 11.10.2003 had been obtained by the decree-holder Narinder Singh against the judgment debtor Inderjit Kaur by fraud and by misrepresenting the court. Respondent No.1 filed reply dated 28.8.2009 to the objection petition. In the execution application, respondent No.1 had prayed for issuance of warrants of possession of the property in question. According to the objector, the remedy available to the decree holder was only under Order XXI Rule 32(i) of the Code of Civil Procedure. Respondent No.1 did not file any reply to the application for framing issues but made a statement that the objection petition is not maintainable as the objector was not in possession of the property. The executing court vide order dated 5.2.2011 dismissed the said application. Hence, the present revision petition.

(3.) I have heard learned counsel for the parties and have perused the record with their assistance.