LAWS(P&H)-1998-6-22

DARYA SINGH Vs. UTTMA WIDOW

Decided On June 30, 1998
DARYA SINGH Appellant
V/S
Uttma Widow Respondents

JUDGEMENT

(1.) DARYA Singh petitioner filed a suit against the respondents claiming the following reliefs :- (i) That the plaintiff is the owner of land measuring 24 kanals 10 marlas in village Khamba Tehsil and District Ferozepur as described in the plaint and also in the jamabandi for the year 1978-79; (ii) that the registered sale deed dated 19.6.1984 allegedly executed in favour of Hazara Singh predecessor-in-interest of defendants 1 to 8 was illegal, void, without consideration and not binding on the ownership rights of the plaintiff; (iii) that the alleged sale deed dated 19.6.1984 was in fact a mortgage deed in favour of Mangat Ram defendant 9; (iv) That defendants 1 to 8 be restrained from asserting/claiming any right under the alleged sale deed which is illegal and void. The suit was dismissed by the Additional Senior Sub Judge, Ferozepur on 7.11.1998. Feeling aggrieved by the judgment and decree of the trial Court, the plaintiff filed an appeal before the Additional District Judge which was allowed on 27.5.1991. The judgment and decree of the trial Court was set aside and the suit of the plaintiff decreed 'as prayed for'. The Appellate Court further directed that the plaintiff could execute the decree only on deposit of sale consideration proved to have been received by him from Hazara Singh while executing the document. It was ordered that he could execute the decree only after deposit of money for which purpose he was allowed three months' time. Defendants filed Regular Second Appeal 1350 of 1991 in this Court which was dismissed in limine on 8.7.1991. The plaintiff then filed an application for the execution of the decree and deposited a sum of Rs. 30,000/- with the executing court. On receipt of notice from the executing court the judgment debtors-respondents filed their objections pleading that only a declaratory decree had been granted which could not be executed and that the plaintiff never sought possession of the land in dispute and no such relief having been granted to him, the Court could not issue a warrant of possession as was prayed by the decree holder. The executing court accepted the objection petition and rejected the prayer of the decree holder for the issuance of a warrant of possession. It is against this order that the present revision petition has been filed.

(2.) I have heard counsel for the parties and it is their common case that the suit of the plaintiff was decreed 'as prayed for'. Admittedly one of the prayers made in the plaint was that the alleged sale deed dated 19.6.1984 was in fact a mortgage deed in favour of Mangat Ram defendant 9. This prayer having been granted the court declared that the alleged sale deed was a mortgage deed and that the land had been mortgaged in favour of defendant 9 in a sum of Rs. 30,000/-. It is not in dispute that while decreeing the suit the first Appellate Court directed that the decree holder could execute the decree only on deposit of sale consideration proved to have been received by him from Hazara Singh the predecessor-in-interest of defendants 1 to 8. He was allowed three months' time to make the deposit. After depositing a sum of Rs. 30,000/- the decree holder prayed that warrant of possession be issued in his favour. This prayer has been declined on the ground that the relief of possession had not been granted by the court. I must at the outset observe that the judgment of the lower Appellate Court decreeing the suit is not happily worded and it should have been clearly stated that the plaintiff is entitled to possession on deposit of the mortgage amount of Rs. 30,000/-. No doubt this has not been stated in so many words but the effect of the judgment is that the plaintiff- decree holder was given the right to take possession of the suit land on deposit of the mortgage amount which was proved to have been received by him though described as sale consideration. The document executed has been held to be a mortgage deed and the plaintiff was allowed to execute the decree on deposit of the mortgage amount. It obviously meant that he could redeem the mortgage amount which is the alleged sale amount of Rs. 30,000/-. In the circumstances, it cannot be said that the relief of possession on redemption of the mortgage had not been granted to him. Having deposited this amount there is no reason why he should not be delivered possession of the suit land. The trial Court has grossly erred in law in not issuing the warrant of possession.