Raj Pal & Ors. v. Murti Devi & Ors.

Present :- Ms. Rupinder K. Thind, Advocate for the petitioners Mr. S.K.S. Bedi, Advocate for the respondents

3. Whether Reporters of local papers may be allowed to see the judgment? Yes To be referred to the Reporters or not? Yes Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL)

1. The petitioner has invoked jurisdiction of this Court under Article 227 of the Constitution of India assailing the order dated

27.5.2009 passed by Executing Court/Civil Judge (Sr. Divn.) Jind in execution No. 40 of 2005 directing to consider the objections filed by respondents – judgment debtors under Order 21 Rule 97 CPC as suit and decided to proceed with the objections by framing issue as to whether deceased Mange Ram had executed any Will dated

2.12.1971 in favour of objectors.

2. The brief facts of the present case are that Mange Ram was the owner of the property in dispute. Mange Ram had only one issue i.e. daughter Phul Pati. Kulbir Singh son of Sohan Lal filed suit for declaration against Mange Ram contending therein that on C.R. No. 4411 of 2009 2 the basis of family settlement, Kulbir had become owner in possession of the property previously owned by Mange Ram. That suit was decreed by Civil Court on 17.12.1991. Mange Ram died on

5.7.1992. Phul Pati, the only daughter of Mange Ram after coming to know about the decree dated 17.12.1991 passed in favour of Kulbir filed suit challenging the decree dated 17.12.1991. During the pendency of the suit Kulbir - defendant expired. The present respondent No. 2 - one of the objector was impleaded as LR of the Kulbir. The suit filed by the Phul Pati was decreed on 18.1.2002. During the pendency of the suit filed by Phul Pati, Sohan Lal – respondent No. 2 herein after becoming the LR of the Kulbir sought an amendment in the written statement saying Mange Ram deceased had executed one Will in his favour as well as in favour of Harish on 2.12.1971. Hence, he alongwith Harish have become owner of the property. His application for amendment was dismissed by the trial Court on 2.11.2002. Thereafter, Sohan Lal moved another application in the Civil Suit requesting the Court to delete his name from the array of the party as LR of Kulbir. That application was also rejected by the Civil Court on 5.1.2002. Sohan Lal – respondent No. 2 herein did not challenge both the orders rejecting his two applications one for amendment and second for deletion. He preferred first appeal challenging the decree passed in favour of Phul Pati in the first Appellate Court, however, he did not raise all these points. He preferred second appeal before this Court but did not raise any ground against the order dated 2.11.2000 and 5.1.2002 thereby refusing his applications for amendment and deletion as LR of Kulbir. It is important to mention here that meanwhile Phul Pati C.R. No. 4411 of 2009 3 also died and present petitioners were brought on record as LR of Phul Pati.

3. After dismissal of the second appeal filed by respondents herein all the present petitioners moved an execution application. In the execution application Sohan Lal – respondent No. 2 herein raised an objection under Section 47 read with Order 21 Rule 97 CPC saying decree can not be executed in favour of the decree holders, In view of the fact that Mange Ram had executed an Will dated

2.12.1971 in his favour as well as in his favour of Harish and they are in possession pursuant to the Will. Learned Executing Court thereon passed the impugned order.

4. After hearing learned counsel for the parties and after perusing the record, I find that there are certain undisputed facts which are - (i) Mange Ram was the owner of the property. He was having only one issue i.e. daughter Phul Pati – mother of the present petitioners. (ii) Kulbir obtained decree against Mange Ram dated

17.12.1991 on the basis of family settlement. (iii) Phul Pati mother of the present petitioners filed Civil Suit against Kulbir challenging the decree dated

17.12.1991. (iv) During the pendency of the suit Kulbir died and respondents were brought on record as LRs of Kulbir (v) Respondent No. 2 moved an application before the Civil Court seeking amendment in the written statement for taking plea of the ownership on the basis of Will dated C.R. No. 4411 of 2009 4

2.12.1971 and after rejection of the amendment application moved another application seeking deletion from the array of the party as LR of Kulbir. Both these applications were dismissed by Civil Court vide order dated 2.11.2000 and 5.1.2002 (vi) Suit filed by Phul Pati was, thereafter, decreed on

18.1.2002 against the respondents herein who were already on record as LR of the original defendant Kulbir. Respondents herein preferred first appeal and second appeal and lost therein also. (vii) Present petitioners being LRs of the Phul Pati - decree holder moved an execution application and in the execution application now respondents/judgment debtor raised an objection under Section 47 read with Order 21 Rule 97 CPC saying Mange Ram the original owner had executed Will in favour of respondent No. 2 and Harish on

2.12.1971. Hence, they are entitled to resist the decree.

5. There are undisputed facts mentioned herein before. Now important question arises as to whether any judgment debtor can resist the decree saying he is the owner on the basis of Will which was never subject matter of the suit?

6. This is the settled position of law that after suffering the decree, judgment debtor can not resist the decree on the basis of any other ground of title which ought to have been raised in the trial. Order 21 Rule 97 would be applicable only in the case of third party who was not party in the decree. Order 21 Rule 97 can not be C.R. No. 4411 of 2009 5 invoked by the person who had suffered the decree. Since objectors had already suffered the decree being LR of the original defendant – Kulbir, hence objections raised by respondents herein are not maintainable.

7. The impugned order passed by the Executing Court is liable to be set aside. Impugned order is set aside. Learned trial Court is directed to conclude the proceedings of execution as early as possible and in any case within 6 months from today. Objections filed by the respondents before the learned trial Court stand dismissed.

8. Present petition is allowed accordingly.

08.07.2010 (ALOK SINGH) JUDGE