PRITAM SINGH Vs. MUNNA SINGH

JUDGEMENT

(1.) This is an execution second appeal against the order of the District Judge, Jullundur, dated 27th May, 1968, whereby he dismissed the appeal of the appellants against the order dated May 16, 1967, of the Subordinate Judge Ist Class, Jullundur.

(2.) Briefly stated, the facts of the case are that Munna Singh filed a suit against Ram Singh and others for specific performance of the contract entered into between him and Ram Singh defendant. The suit was compromised by Munna Singh and Ram Singh. The other defendants were proforma defendants. A compromise decree was passed by the Subordinate Judge Ist Class, Nawanshahar at Jullundur, on January 16, 1964. Munna Singh got the decree executed and warrant of possession of the land was issued. In that execution application, Sadhu Singh, Pritam Singh and Darshan Singh, defendants, filed objection petition under Section 47, Code of Civil Procedure (hereinafter referred to as the Code), that they had purchased the half of 5 kanals 2 marlas of land comprised in khewat No. 102/153, khasra No. 13/3/2, and that portion of the land was never the subject matter of the suit for specific performance of the contract, nor Ram Singh could alienate that portion of the land and that the order of the executing court issuing warrant of possession of the said land was erroneous. The objection petition was dismissed by the Subordinate Judge as the possession of the land had already been delivered to the decree-holder and held that they could not get the possession of the land in dispute under the decree and if advised they could file an application for the return of the possession of land. Pritam Singh and others being aggrieved with the order of the learned Subordinate Judge, filed an appeal in the Court of the District Judge, Jullundur, but it was dismissed. The learned District Judge observed that the lower Court correctly ordered that in case the possession of the disputed property was still with the appellants, they could go on enjoying the same and this possession would not be disturbed at the instance of the decree-holder in any other execution application relating to the same decree and if the possession had passed to the decree holder, the proper course for them was to file an application for restitution of the possession if they were otherwise entitled to the possession of the same.

(3.) The learned counsel for the appellants vehemently urged that both the Courts below have not decided the point at issue and, therefore, the case be sent back for decision as to whether the appellants were owners of the Khasra No. referred to above or not. Further, according to him, the Courts below were required to decide this point as it arose in the execution of the decree. None of the respondents has put in appearance in spite of service.