LAWS(HPH)-2019-1-40

BHAGAT RAM Vs. ABHAY & OTHERS

Decided On January 08, 2019
BHAGAT RAM Appellant
V/S
Abhay And Others Respondents

JUDGEMENT

(1.) These two petitions, preferred by the Judgment Debtor, are being decided by this common judgment as the common questions of fact and law are involved therein.

(2.) In both petitions, order(s) dated 18.8.2017 passed by learned Senior Civil Judge, Court No.1, Shimla (hereinafter referred to as the Executing Court) respectively, in two different execution petitions bearing No. 24-10/2015 titled Abhay and others vs. Bhagat Ram and case No. 25- 10/2015 titled Abhay and others vs. Bhagat Ram have been assailed, whereby the Executing Court, during pendency of execution petition(s), on application(s) filed under Sec. 146 read with Order 21 Rules 11(2), 16 and 32 of the Code of Civil Procedure (in short 'CPC') by the Decree Holders/assignees, has ordered the issuance of summons to the original decree holder.

(3.) Original Decree Holder (Usha Verma and her two brothers Ajay Kumar and Ashok Kumar) through their power of attorney Usha Verma had filed a civil suit No. 35/1 of 2000 titled Usha Verma and others vs. Bhagat Ram against Judgment Debtor Bhagat Ram which was decreed vide judgment and decree dated 3.3.2004 and the said decree remained intact uptil the Apex Court as the Special Leave to Appeal (Civil) preferred by Judgment Debtor against the judgment and decree affirmed against him by the High Court in Regular Second Appeal was dismissed by the Apex Court on 10.11.2014. Thereafter,respondents/assignees had purchased the entire suit land, subject matter of aforesaid decree dated 3.3.2004 vide agreement to sell dated 10.4.2015 followed by four registered sale deeds bearing registration Nos. 741/2015, dated 10.4.2015, Registration No. 742/2015 dated 10.4.2015, Registration No. 761/2015 dated 16.4.2015 and Registration No. 762/2015 dated 16.4.2015 acquiring all rights of joint Decree Holders in the suit land. In addition, original Decree Holders have also executed deed of assignment dated 24.8.2015 in favour of respondents/assignees. Being a transferee of the suit land and also as an assignee of judgment and decree dated 3.3.2004, affirmed uptil the Apex Court, respondents/assignees have filed an execution petition before the Executing Court, wherein original Decree Holder has not been arrayed as party and the Executing Court without issuing a notice to the original Decree Holder, had issued notice to Judgment Debtor, who has preferred objections dated 10.11.2016 under Sec. 47 of Civil Procedure Code against execution of judgment and decree on various grounds including that the decree passed in favour of the original Decree Holder has never been assigned in favour of the respondents/assignees.