KAPOOR SINGH Vs. OM PRAKASH

JUDGEMENT

(1.) THIS appeal is directed against order of the Additional Civil Judge (Sr. Division), fatehgarh Sahib dated 4. 6. 2008 and the order of the District. Judge, Fatehgarh sahib dated 03. 03. 2009, whereby objections filed by the appellant-Kapoor Singh were dismissed.

(2.) THE brief facts of the case are that sarwan Singh son of Bishan Singh (hereinafter referred to as 'judgment debtor') entered into an agreement to sell dated 16. 5. 1988 with one Om Parkash son of bhiwani Ram (hereinafter referred to as 'decree holder')land falling in Khewat/khatoni no. 55, Khasra No. 112 (8-10) 113 min. total measuring 10 Bighas 10 Biswas situated in village Khoje Majra, Tehsil and District fatehgarh Sahib, @ Rs. 8,000/- per bigha after receiving earnest money of Rs. 50,000/ -. The sale deed was to be executed by judgment debtor in favour of the decree holder on or before 30. 5. 1989. Since the judgment debtor did not execute the sale deed as stated in the agreement, therefore, the decree holder filed a Civil Suit No. 657 of 16. 9. 1991 titled as Om Parkash v. Sarwan singh for specific performance and permanent injunction which was decreed by Sub judge 1st Class, Fatehgarh Sahib on 22. 10. 1994. The decree passed in the suit reads as under:

(3.) THE decree holder filed an execution application dated 29. 3. 2001 for execution of the sale deed in his favour by the judgment debtor or by way of appointment of local Commissioner after depositing the balance amount. In execution of the said decree, sale deed No. 356 dated 8. 5. 2002 was executed and registered in favour of the decree holder in respect of the land in question. After the execution of the decree and the sale deed, decree holder filed an application dated 22. 5. 2002 in which it was averred that the judgment debtor had forcibly taken possession and since the decree dated 22. 10. 1994 was also for permanent injunction, therefore, invoking the power of the Executing Court, under Order 21 Rule 32 of Code of Civil Procedure, 1908 (in short 'cpc'), it was prayed that the possession be re-delivered to the decree holder. Since the decree holder filed the aforesaid application, gurdev Singh one of the brothers of Sarwan singh (decree holder) filed objection petition on 23. 5. 2002 under Order 21 Rules 58, 89 and 90 of CPC for setting aside the sale deed no. 356 dated 8. 5. 2002, inter alia, on the ground that the decree holder did not disclose that property in dispute is in possession of the objector (Gurdev Singh) as owner and an electric connection bearing A/c. No. A-606 is installed therein for the last more than 18 years in his name, which was got installed by him on 31. 3. 1984. It was also alleged that earlier the land in question was owned by the judgment debtor but it is in possession of the objector (Gurdev singh ). The judgment debtor had exchanged the land in question with Objector (Gurdev singh and Kapoor Singh) jointly on the basis of which Mutation No. 1236 was sanctioned on 8. 5. 1998. Thereafter, the land was partitioned between the Kapoor Singh and the objector (Gurdev Singh) and Mutation no. 1237 was sanctioned. It was, thus, claimed that Objector (Gurdev Singh) is the exclusive owner in possession of the land in question with which judgment debtor had no concern. The decree holder contested the objection petition filed by Gurdev Singh which was ultimately dismissed by the executing Court vide order dated 8. 2. 2005 observing that the objections filed by Gurdev singh are in collusion with Sarwan Singh (judgment debtor) in order to defeat the decree. The objgctor (Gurdev Singh) filed appeal against the order dated 8. 2. 2005, which was also dismissed by the Additional district Judge, Fast Track Court, Fatehgarh sahib vide order dated 10. 8. 2007 observing that Mutation Nos. 1236 and 1237 which has been entered on the basis on which the objector in claiming the relief against the decree holder are without any basis and moreover, the exchange deed and the partition which were the basis of the mutation were not produced on record. Even otherwise, it was found that the exchange and partition took place after the filing of the suit. While the aforesaid objections filed by the Gurdev singh were dismissed, the proceedings were continued in the application dated 22. 5. 2002, whereby the decree holder claimed possession of the land in question in which the Executing Court vide its order dated 23. 4. 2005 ordered that the decree holder is entitled to get delivery of possession of the land in question and for that purposes warrants for delivery of possession was ordered to be issued. In order to thwart the attempt of the decree holder to regain possession in terms of the order passed on 23. 4. 2005, the decree holder put forward his other brother Kapoor Singh (appellant) to file objection. The appellant Filed practically similar objections in the execution application, which were filed by his other brother gurdev Singh, who remained unsuccessful before the Executing Court as well as the appellate Court. The decree holder contested the objections filed by the appellant and the learned Executing Court vide its order dated 4. 6. 2008 dismissed them observing that the objections have been filed only to delay the proceedings in the present execution which has already become very old. The appellant filed appeal against the order dated 4. 6. 2008 which too was dismissed by the District judge, Fatehgarh Sahib vide his order dated 3. 3. 2009. The present appeal is, thus, filed by the appellant challenging the order dated 4. 6. 2008 and 3. 3. 2009. The only question raised by the appellant in the present appeal is that decree dated 22. 10. 1994 is for specific performance of agreement to sell dated 16. 5. 1988 by way of execution and registration of sale deed regarding the land in question and also for permanent injunction restraining the defendant (judgment debtor) from alienating the suit land. It is contended that while deciding issue No. 5 it has already been observed by the Trial Court that possession of the suit land was delivered by the judgment debtor to the decree holder at the time of execution of the alleged agreement to sell and as such suit for permanent injunction was dismissed. It is contended by learned counsel for the appellant that the sale deed has already been executed; therefore, the decree has been satisfied but the Executing Court has committed an error of law by executing warrants of possession when there is no decree for possession in favour of the decree holder. It is also contended that once the decree has been satisfied, the execution proceedings cannot continue for the purpose of delivery of possession as the Executing Court cannot go behind the decree. On these premises even the questions were framed in para 9 of the grounds of appeal. In reply, the learned counsel for the respondent has vehemently contended that the judgment debtor did not challenge the judgment and decree dated 22. 10. 1994 which had attained finality. In order to stall the execution proceedings in collusion with his other brother Gurdev singh and now with Kapoor Singh, identical objections have been filed, which have been dismissed by both the Courts below, therefore, all futile efforts have been made by the judgment debtor to obstruct the execution of the decree in so far as execution of sale deed is concerned and now they have forcibly taken possession in" spite of decree of permanent injunction. Therefore, the respondent decree holder had a right to invoke the provisions of Order 22 Rule 32 (5)CPC under which the Executing Court has the jurisdiction to restore possession of the property in dispute which has been taken by the other side in violation of the decree.