Sections 51 to 54 of C.P.C talk about procedure in execution or mode for execution. Section 51 says executing court shall execute decree by delivering of any property by attachment. Statutory provisions of Order 21 C.P.C lay down a complete code for resolving all disputes pertaining to execution of the decree for possession obtained by a decree-holder. Section 47 read with Order 21 rule 101 of C.P.C says that all the questions relating title are to be decided by executing court. In terms of order 21 rule 13 of C.P.C when an attachment of property is made, it should contain sufficient description of property to be attached by boundaries, numbers in record of settlement or survey. In terms of order 21 rule 35 of C.P.C, where decree is for delivery of immoveable property, the possession is to be delivered to decree holder by removing any person bound by decree; where a decree is for delivery of immoveable property if such property, is in the possession of any person bound by the decree, such person may be called upon to vacate the property in order that possession may be delivered to the person to whom it has been adjudged, or his agent; and if he refuses to do so he may be removed from the property in order to effect such delivery of possession. In terms of order 21 rule 58 whenever any objections is made to the attachment of any property in execution decree on the ground that such property is not liable to be attached, the executing court shall decide the same. As per this rule, where the court consider that claims or objections have designed to delay unnecessarily, court will not entertain the same. Upon determination of said objections so raised, shall be conclusive.
Coram: Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge
CR No.32/2018
Date of order:01.02.2019
Ashok Singh. Vs. Veena Gupta.
Appearing
counsel:
For petitioner (s) : Mr. M. L.
Gupta, Advocate
For respondent(s) : Mr. Amit
Gupta, Advocate.
1.
This
civil revision has been filed against the order dated 31.07.2018 passed by
court below in execution petition, whereby applications filed by the petitioner
in the execution petition have been dismissed.
2.
The
factual backdrop of the case in hand is that the respondent-Veena Devi,
preferred a suit in the Court of Munsiff Jammu for possession of the land
measuring 01 Kanal comprising Khasra No.522-min, Khewat No.13, Khata No.287
situated at Village Sunjwan, Tehsil and District Jammu and for mandatory
injunction directing the petitioner-Ashok Singh to remove the construction so
raised over the said land on the ground that the husband of the respondent
namely Sh. Brij Mohan Gupta has purchased the said land, (hereinafter referred
to as the suit land) of which the mutation has been attested in favour of her
husband and the petitioner has raised construction over the same and based her
claim on the basis of the report of the concerned Revenue Agency.
3.
Notice
was issued for appearance to the petitioner/defendant for appearance on 9th of
December, 2013 and on 9th December, 2013 the Court below directed to issue
fresh summons against the petitioner herein to procure his attendance and the
next date was fixed for 3rd January, 2014 and afterwards on 16th January, 2014
the Court below marked the absence of the petitioner and fixed the date for 10th February, 2014.
On the next date i.e. 12th March, 2014 the statement of the Process Server was
recorded by the Court below for service which was affected for 9th December,
2013 on petitioner and the ex-parte proceedings were initiated and ultimately
the ex-parte proceedings culminated into a decree passed by the learned court
below on 31st May, 2014.
4.
After
passing of the ex-parte decree the execution petition was preferred by the
respondent and the Court issued notice to the petitioner. The petitioner
preferred application for setting aside the ex-parte decree which came to be
dismissed in default of the appearance of the petitioner as the application was
fixed for 10th January 2016 which was a Gazetted Holiday and the file was taken
up on 11th January, 2016 and the same was dismissed for want of prosecution
illegally in view of the fact that the case was taken up on the next day after
holiday. In the execution petition the petitioner took the plea that the decree
is declaratory in nature and cannot be allowed to sustain and being ambiguous
decree as the suit land has not been identified in the decree. It was also
submitted in the objections to the execution application that the land
comprising Khasra No.522-min, Khewat No.13, Khata No.266-min measuring 19
Marlas has been purchased by the petitioner vide Sale Deed dated 8th October, 2002
registered with the court of learned Registrar Muffasil, Jammu on the same date
and the petitioner is in peaceful possession of the same where the petitioner
has raised construction after taking loan and the mutation has also been
attested in favour of the petitioner being Mutation No.3461.
5.
The
Court below in order to ascertain the truth to identify the land appointed the
Commissioner and the Commissioner on surmises and conjectures demarcated the
land of the petitioner and that of the respondent and the Court issued warrant
of attachment against the petitioner vide order dated 23rd November, 2017. The
petitioner filed application for recalling the order of attachment dated 23rd
November, 2017 before the Court below taking the plea that the decree itself is
not executable and the demarcation was not conducted properly by the officials
of the Revenue agency as the land bearing Khasra No.522 is a big chunk of land
and cannot be said that the land is belonging to the decree holder-respondent,
and the possession is to be given to her. It was also averred that the Trial
court failed to consider the fact that since 2002 after purchasing the land the
construction was raised by the petitioner and the respondent preferred the suit
before the Court below on 26th October, 2013 and this clearly shows that the
respondent was not aware of her piece of land that where it is located and
keeping mum for such a considerable period amounts to waiving of her rights. It
is further submitted that the judgment and decree was unsustainable. Moreover,
it was also brought to the notice of the Court below that proper Nishandehi is
to be taken into consideration but the same has not been done and an illegality
has been committed by the concerned Revenue officials for demarcating the suit
land which cannot be allowed to sustain so that the party may not be made to
suffer.
6.
In
the application the petitioner also took a ground with regard to the execution
of the decree that the decree is in-executable and the executing court has to
consider the same. This aspect can be considered by framing of issue and after
leading evidence.
7.
Petitioner
submits that along with the said application for recalling the order dated
23-11-2017 passed in the execution application, the petitioner also preferred
application for restoration of the application under Order IX Rule 13 C.P.C.
and Court after inviting the objections and hearing the arguments, dismissed
the same vide order dated 31st July, 2018: and the petitioner is seeking
setting aside of the order impugned only to the extent recalling of the
attachment order. In addition to it, the averment is made that the land was
belonging to the ‘Custodian Department and the seller from whom the petitioner
and the respondent as well, have purchased the land was vested with the
alienable rights (occupying rights) under Section 3(A) of the Agrarian Reforms
Act and only the Custodian Evacuee Property was having jurisdiction but the
Court below failed to discuss the said point while returning the findings. So
far as the Nishandehi is concerned the court below was required to ascertain
that how the demarcation is to be conducted as the land under Khasra No.522 is
a big chunk of land and the procedure has been laid down for demarcation which
was not adopted by the Revenue agency while submitting the report, as such the
findings to this fact are perverse and cannot be allowed to sustain. Further,
it is submitted that with regard to maintainability of the execution petition
was raised to which no findings have been returned rendering the order impugned
unsustainable.
8.
I
have considered the rival contentions of the parties.
9.
Petitioner
has placed reliance on a case tiled M/s Century Textiles Industries Ltd. vs.
Deepak Jain & anr. reported in 2009 (2) CCC 780 decided by the
Apex Court and case titled Abdulrahiman vs. Parameshwarai Amma reported
in 1998(3) CivCC 445 decided by the Kerala High Court, wherein it has
been held that executing court cannot go behind decree; case titled Ravinder
Kumar vs. Jaswant Singh and other reported in 1990 CCC 397 decided
by the Punjab and Haryana High Court, wherein it is held that objections raised
has to be decided after framing of issue; case titled Braham Datt vs. Prem
Chand and other reported in 2000 AIHC 1166, wherein in second
appeal, it has been held that it is duty of court to deliver substantial
justice, and mistake of govt. agency in demarcation land part should not
suffer; case titled Krishan Singh alias Kishan Singh vs. Balram Singh reported
in 2011(2) R.C.R. (Civil) 219, wherein in appeal, additional evidence in
term of order 41 rule 27 was produced and court held that demarcation report
has no value if notice was not give; case titled Shri Rattan Chand Son of
Lachho Ram vs. Pushpa Devi widow of Shri Balwant Singh and other reported 2014
(85) R.C.R. (Civil) 94, wherein it has been held that demarcation report
prepared on Aks Musabi has no value; case titled Kattula Kanaka Veeraiah vs.
Basava Hari Sankara Rao, reported in 2018 (1) CivCC 105 decided by
the Telangana and Andhra Pradesh High Court, wherein the revision petition was allowed;
case titled Sabbir Ahmad and others vs. Additional District Judge and others
reported in 2011 (3) CCC 125, wherein it has been held that trial
court committed error in decreeing suit due to non filing of written statement;
case titled Awadhesh Singh vs. IInd Addl. District Judge, Deoria and ors. reported
in 1997 (1) CivCC 44 decided by the Allahabad High Court, wherein it is
held that decree for foreclosure cannot be executed without preliminary decree
and court can undo any injustice without being restricted by any procedural
technicalities.
10.
Learned
counsel for the respondent in rebuttal has supported the order of court below
and has stated that petitioner has already filed an appeal against the order of
court below thereby dismissing his application for setting aside ex-parte
decree, where he has failed to get stay of execution. Now he has filed present
revision on same grounds which he already took and same were disallowed by
trial court by way of order dated 19.05.2017.
11.
I
have given my thoughtful consideration to whole aspects of the matter.
12.
From
bare perusal of facts/orders of the case, it is evident that respondent, who is
now more than 80 years old obtained an ex-parte decree on 31.05.2014 for
possession of vacant land comprising I kanal under Khasra No.522 min Khewat
No.13 and Khata no.287 situated at Sunjawan, Jammu with decree of mandatory
injunction thereby directing the defendant/ petitioner herein to remove illegal
construction raised by him over the said land. An execution petition came to be
filed before court below by respondent, and on 23.11.2017 attachment order of
property/house constructed on land came to be passed by court below; petitioner
herein filed two applications, one for setting aside ex-parte decree and
another for recalling of order of attachment. Petitioner in application for
recalling attachment order took stand that attachment order has been passed
relying upon report of Commissioner, Tehsildar Bahu, Naib Tehsildar, Rakh Bahu
and the Girdawar concerned. The said Nishandehi was conducted in his absence as
he was not summoned to participate in the Nishandehi and if the nishandehi
would have been conducted in presence of the petitioner/judgment-debtor, the true
facts would have been merged.
13.
It
was further stated that suit house has been constructed on the land measuring
19 marlas comprising khasra no.522 belonging to him which was purchased by him
through valid Sale Deed dated 8th October, 2002 registered by the Court of Sub
Registrar, Muffasil, Jammu. That decree-holder is having land in the same
khasra number but her Sale Deed and Fard Intikhab clearly depicts that land is
in the same khasra no. 522. It was further stated that the Commissioner has
submitted that the same plot seems to be measuring 19 marlas has been shown to
be purchased by petitioner/judgment-debtor and the mutation no. 3443 has also
been attested in Khasra no.522, which is a big Chunk of land. That Court below
also failed to take note of the fact that the same Commissioner has already
submitted the report at the instance of the court order dated 9.8.2017 which is
clear and specifies the demarcation which has been done in presence of both the
parties who were summoned by the concerned Commissioner i.e. Tehsildar Bahu.
Thus on the basis of the two reports submitted by the same Commissioner, this
court could not have ignored this fact without citing any reason done with the
demarcation report which is ex-parte filed by the Commissioner, Tehsildar. As
such the order passed by this court dated 23.11.2017 was unwarranted and
requires to be called.
14.
Objections
were filed by respondent/decree-holder that application for recalling of order
of attachment is not maintainable. Court below after hearing the parties
dismissed the petition of petitioner. The relevant paras of impugned order
reads as under:-
“9. Heard and
perused the record as well as case laws given by both sides interpretating the
relevant provisions touching the controversy. At the very outset, it is to be
cleared that this court is conscious of the fact that
petitioner/judgment-debtor by filing present petition seeking recalling of
attachment order, once again tries to object the execution of decree by raising
all possible defences which are available to him under law which were not
earlier taken by him at the time of filing objections to the execution petition
which was decided on merits by this court vide its order dt. 19-5-2017 but still
this court will address all these grounds in order to advance administration of
justice. The present application is filed on various counts, first among which
is that executing court can't verify or modify it and also can't go beyond the
decree. However, if the decree is ambiguous the court has to look into the
decree and in present case, the judgment and decree drawn is not within the
ambit of Order 20 C.P.C. I have gone through the judgment and decree and in no
sense same is found to be ambiguous whereby defendant therein/petitioner herein
was directed to remove the illegal construction of house over land measuring 1
kanal comprising khasra no. 522 min, Khewat no. 13 and khata no. 287 situated
at Sunjwan Jammu.
10. Second
ground of counsel for petitioner is that the decree sought to be executed is
declaratory in nature and can't be executed in view of section 47 CPC because
the suit property is not described in the original suit and the executing court
is not having jurisdiction to get the land of decree-holder demarcated when she
herself don't know where her land is situated by placing reliance on “2009 (5)
SCC 634” whereby it is held that executing court can't widen the scope of
decree I think this argument is having no base because the suit property is
properly described in Suit and then in decree also as khasra no, khata no. and
khewat no. are clearly mentioned which comes from the Sale
Deed of
decree-holder having Aks Tatima. It is quite surprising that
petitioner/judgment debtor is putting question mark on the description of land
of decree-holder who is laying as per claim through registered Sale Deed that
too having Aks Tatima. On the contrary, the sale Deed on which judgment-debtor
is laying claim is having dasti-khakha which is not at all extract of Latha
Massavi and so the identification of land of petitioner/judgment/ 0c debtor is
not known who illegally constructed his residentia1 house over the land of
decree-holder. Merely because that he raised loan for construction of said house
and i5 infact residing there for last so many years doesn't give him leverage
to take away the rights of decree-holder over suit land who got the decree of
vacant possession of suit land and the point of pecuniary jurisdiction, if any,
stand decided by this court earlier vide its order dt. 19-5-2017 in the
objections filed by judgment-debtor t0 the execution petition and same is now
binding on petitioner/judgment-debtor because same remain unchallenged and so
this issue can't raised here once again.
11. The second
objection pertains to demarcation report conducted by Commissioner, Tehsildar
Bahu, Naib Tehsildar, Rakh Bahu and Girdwar concerned which according to
petitioner/judgment-debtor is conducted in his absence and thus can't be relied
upon by this court by placing reliance on “2014 (48) RCR (Civil) 88” and “ 011
(2) RCR (Civil) 219” whereby it is held that notice of demarcation if not given
to party goes to root of case but I think this ground is having no force,
firstly because the order dated 12-9-2017 was passed in presence of both the
parties and their respective counsels and judgment debtor/petitioner was having
full knowledge of demarcation of the suit land and his absence, if any, during
demarcation by the Commissioner again point towards his negligence of dilatory
tactics and nothing else. Moreover keeping in View the fact that the house of
the Judgment -debtor is constructed on the suit land, it is quite impossible
that when demarcation team reached there then he was not present there or was not
having knowledge of the same. And if he himself despite knowledge does not
choose to remain present during demarcation then it is nothing but a dilatory
tact‟s to halt the matter.
12. Finally, the
judgment-debtor puts a question mark on the demarcation report filed by
Commission which according to him is not in consonance with law as no map was
prepared on spot and by getting the land demarcated, the executing court
exceeds its jurisdiction to help the decree-holder. I found this argument is
baseless because the demarcation order was passed in presence of both parties
and if any of parties was aggrieved 0f the approach of the execution court then
no one barred them to challenge the same at that time. Merely because the demarcation
report comes against the petitioner/judgment-debtor doesn't give him right now
to put question mark on the demarcation report. In fact, the executing court
before passing strict order of demolishing of house as granted by Ld. Trial
Judge become doubly sure that the residential house of
petitioner/judgment-debtor is infact constructed on the land of decree-holder
and when not satisfied with the earlier demarcation report of Tehsildar who
filed same after issuance of contempt notice again directs higher authority to
get the same done in professional manner so as to advance administration of
justice. But the petitioner/judgment-debtor remained silent during course of
proceedings when demarcation orders were passed and now put question mark on
those orders which only shows his conduct to linger on the matter when
attachment of his residential house was ordered by this court 011 23-11-2017
after waiting for judgment-debtor on 10-11-2017 and 21-11-2017. Merely because
that aks-tatima was prepared doesn't mean that demaracation report can't be
relied because such a big residential house is found to be constructed on land
of decree-holder. Had the land is vacant comprising big khasra number then
situation would have been different because in that case, the demarcation
requires preparation of map on spot. So, I found all the grounds agitated in
present application too are without any legal force and as such rejected. 13.
Viewed thus, both these applications are dismissed and accordingly order dt.
23-112017 becomes operational and Nazir of Ld. Pr. District Judge, Jammu is
directed to attach the house of judgment-debtor which is illegally constructed
on the land of the decree holder after giving two days notice to
judgment-debtor to remove his belongings from the said house and incase same
are not removed then Nazir is further directed to„ prepare inventory of said
articles lying in the said house before attachment. This court also apprehends
that there is likelihood of some breach of law and order, so 8513/ Jammu is directed
to provide police protection to Nazir at the time Of attachment of illegally
constructed house of judgment-debtor and take action according to law against
whom Whoever tries to intervene in the process of court. Nazir is further
directed to file compliance report on or before next date of hearing which is
8-9-2018 after which further orders shall be passed.”
15.
Sections
51 to 54 of C.P.C talk about procedure in execution or mode for execution.
Section 51 says executing court shall execute decree by delivering of any
property by attachment. Statutory provisions of Order 21 C.P.C lay down a
complete code for resolving all disputes pertaining to execution of the decree
for possession obtained by a decree-holder. Section 47 read with Order 21 rule
101 of C.P.C says that all the questions relating title are to be decided by
executing court. In terms of order 21 rule 13 of C.P.C when an attachment of
property is made, it should contain sufficient description of property to be attached
by boundaries, numbers in record of settlement or survey. In terms of order 21
rule 35 of C.P.C, where decree is for delivery of immoveable property, the
possession is to be delivered to decree holder by removing any person bound by
decree; where a decree is for delivery of immoveable property if such property,
is in the possession of any person bound by the decree, such person may be
called upon to vacate the property in order that possession may be delivered to
the person to whom it has been adjudged, or his agent; and if he refuses to do
so he may be removed from the property in order to effect such delivery of
possession. In terms of order 21 rule 58 whenever any objections is made to the
attachment of any property in execution decree on the ground that such property
is not liable to be attached, the executing court shall decide the same. As per
this rule, where the court consider that claims or objections have designed to
delay unnecessarily, court will not entertain the same. Upon determination of
said objections so raised, shall be conclusive.
16.
From
bare perusal of order impugned, it is evident, that court below has dealt all
the grounds taken in the petition carefully and given cogent reasons while
dismissing the applications. The finding of court below is correct that decree
has specific mention of property to be attached; as defendant
therein/petitioner herein has been directed to remove the illegal construction
of house over land measuring 1 kanal comprising khasra no. 522 min, Khewat
no.13 and khata no.287 situated at Sunjwan Jammu. The finding of court below is
also correct that the suit property is properly described in Suit and then in
decree also as khasra no. khata no. and khewat no. are clearly mentioned which
comes from the Sale Deed of decree-holder having Aks Tatima; On the contrary,
the sale Deed on which judgment-debtor/petitioner herein is laying claim is
having dasti-khakha which is not at all extract of Latha Massavi and so the
identification of land of petitioner/judgment debtor is not known who has
illegally constructed his residentia1 house over the land of decree-holder. The
objection of petitioner that he was not heard and called at the time of
demarcation conducted by Commissioner, Tehsildar Bahu, Naib Tehsildar, Rakh
Bahu and Girdwar, has also been rightly dealt and overruled by court below on
the ground that the order dated 12-9-2017 of appointment of commissioner was
passed in presence of both the parties and their respective counsel and so
judgment debtor/petitioner was having full knowledge of demarcation of the suit
land, and his absence, if any, during demarcation by the Commissioner again
point towards his negligence of dilatory tactics and nothing else. Court below
has also held that keeping in view the fact that the house of the
judgment-debtor is constructed on the suit land; it is quite impossible that
when demarcation team reached there then he was not present there or was not
having knowledge of the same. It is worthwhile to mention here that on
15.05.2017 trial court has already dismissed the plea of petitioner with regard
to description of property in question. Petitioner again filed similar type of
application which has been dismissed by way of impugned order. I have carefully
gone through the law cited by counsel for petitioner. These are not applicable
in present set of circumstances.
17.
In
AIR 1998 PUNJAB AND HARYANA 202 case titled Rocky Tyres and ors. vs.
Ajit Jain and anr., wherein it is held in paragraph 18 as follows:
“18. It is settled principle of
law that it is not incumbent upon the executing Court that it must put to trial
every objections which are filed in any execution proceedings, even if prima
facie they appear to be frivolous, vaxatious and arc only intended to delay the
execution and frustrate the procedure of law or where it amounts to an abuse of
the process of the Court. In this regard reference can be made to a judgment of
this Court in Execution Second Appeal No. 2333 of 1996, Bhagwan Singh v.
Parkash Chand, decided on 7-11-1996. The Court after detailed discussion and
following the principles enunciated by the Hon'ble Supreme Court of India in
the cases of Babu Lal v. Raj Kumar, JT 1996(2) SC 716 : (AIR 1996 SC 2050),
Munshi Ram v. Delhi Administration. AIR 1968 SC 702 : (1968 Cri LJ 806). B.
Gangadhar v. B. G. Rajalingam, AIR 1996 SC 780 : (1996 AIR SCW 117) and
noticing judgments of various High Courts, held as under :--
"Now for a
considerable period it is not only the judicial trend which has declined to
interfere to protect unlawful possession or possession of ranked trespasser
etc. but, on the other hand, judicial anxiety has been to give effective relief
to the successful parties by expeditious execution of decrees in favour of the
parties. Unnecessary prolongation of litigation sometimes results even in
frustrating the decree itself. Such attempt on the part of the objector to
frustrate a decree is a mischief which has to be prevented by due process of
law and expeditious decision of such ill-founded and frivolous objections would
also be in the interest of justice and within the permissible field of
jurisdiction of the execution."
"If frivolous objections of
the present kind are permitted to unreasonably and un-necessarily prolong the
delivery of possession to a decree-holder in accordance with law, it would
certainly amount to putting a premium on abuse of process of law."
18.
In
view of above facts of the case, I do not find any jurisdictional error and
illegality in order of court below. The revision petition is dismissed.
It has been told that decree holder is more than eighty years old and
petitioner herein is police officer, so he is not allowing the decree to be
executed and protracting the process of execution by misusing the process of
law by filing various applications. In view of this fact, trial court is
directed to take all coercive measures as per law for executing the decree
expeditiously preferably within two months.