Supreme Court of India
Joginder Singh (Dead) Thr. Lrs vs Dr. Virinderjit Singh Gill (Dead) Thr. … on 17 October, 2024
Author: Sanjay Karol
Bench: Sanjay Karol
2024 INSC 814 NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). OF 2024
(Arising out of Special Leave Petition Nos. 9202-9204 of 2016)
JOGINDER SINGH (DEAD) THR. LRs … APPELLANT(S)
Versus
DR. VIRINDERJIT SINGH GILL (DEAD)
THR. LRS. & ORS. ... RESPONDENT(S)
JUDGMENT
SANJAY KAROL J.
Leave to Appeal is granted.
2. Questioned in these appeals are three judgements of the High Court of
Punjab and Haryana passed in CR No. 4418 of 2012 (O & M) dated 6 th May
2015 and 16th September 2015 along with RA-CR No. 265-CII of 2015 in CR
No. 4418 of 2012, dated 20th November 2015. The orders in civil revision (dated
6th May and 16th September 2015) were interim and final, respectively,
dismissing such a revision against order and judgment dated 17th January 2012
of the Additional District Judge, Moga, which allowed the appeal against the
Signature Not Verified
Digitally signed by
JATINDER KAUR
order and judgment dated 17th January 2009 of the Civil Judge, Junior Division
Date: 2024.10.23
17:11:00 IST
Reason:
1-SLP(C) 9202-9204 OF 2016
who had allowed the objections taken by the Appellants herein in the executionpetition filed to enforce the final decree in Civil Suit No. 266 of 1987.
BACKGROUND OF THE INSTANT DISPUTE
3. Although the bone of contention before this court relates to execution
proceedings and the objections taken therein, the factual milieu in which the
controversy has come to stand, as it does today, is important for the purpose of
disposal of these appeals.
3.1 Civil Suit No.66 of 19791 was filed by Mukand Singh (father of the
Appellant, now represented by LRs) and Chanan Singh against a total of thirty-
three persons, including Dr. Thakar Singh (father of the Respondent 1 & 2) and
LRs of Nand Singh, seeking declaration and separate possession of a half share
of the land in Khasra No.6363, Khatauni No.7257 and Khasra No.2259
(measuring 2 Kanals – 18 Marlas). Out of the thirty-three defendants only two,
namely, Dr. Thakar Singh and one Karamjit Singh were represented, while
others remained ex-parte. The suit was decreed and the plaintiffs were declared
owners and possessors of half share of the above property. An appeal was filed
thereagainst, but the same came to be dismissed vide order and judgment dated
18th October 1982. In pursuance thereof, a warrant of possession in favour of
Mukand Singh was issued on 21st September 1985.
1
First Partition Suit
2-SLP(C) 9202-9204 OF 2016
The dispute before this court pertains only to Khasra No.2259 (2 Kanals – 18
Marlas), which is part of Schedule ‘D’ properties described in the plaint.
3.2 Subsequently in 1987, Dr Thakar filed Civil Suit No.2662 against the LRs
Nand Singh and approximately seventy other defendants, for his individual one-
fourth share of 58 marlas (Khasra No.2259). It is to be noted that plaintiffs in
the first partition suit were defendants in this second partition suit, which
included Mukand Singh, the father of Joginder Singh (now represented through
LRs). The Additional Senior Sub-Judge, First Class, Moga, framed the following
issues :-
1. Whether the plaintiff is owner to the extent of share in the
property as detailed in the head note of the plaint? OPP
2. Whether suit is not maintainable? OPD
3. Whether suit is not properly valued for court fees and
jurisdiction? OPD
4. Whether suit is bad for misjoinder of parties? OPD
5. Whether plaintiff is entitled to the decree of possession as
prayed for? OPP
6. Relief.
For Issues 1 and 5, the learned civil court held that “the plaintiff is owner in
possession as co-sharer to the extent of share as mentioned and detailed in
Schedule ABCD in the headnote and as such he is entitled to the decree in
possession by way of partition. Accordingly, I decide both these issues in favour
2
Second Partition Suit
3-SLP(C) 9202-9204 OF 2016
of the plaintiff and against the defendants.” Similarly, Issues 2, 3 and 4 were
also decided in favour of the plaintiff, and the suit was accordingly decreed with
costs. In a subsequent application, the learned civil court appointed a local
commissioner. The first report came on 15th December 1996, and an additional
report was submitted on 25th October 1997.
3.3 On 4th February, 1998, a final decree was drawn up in the above suit with
only one respondent, namely, Karamjit Singh being represented and others ex-
parte. In respect of the contested portion, the final decree records “…Properties
shown in headnote ‘D’ of the plaint be partitioned as suggested by local
commissioner and possession of khasra nos. 2258/1 and 2258/2 as shown be
letters A.B.C.D.E.F.G.H.I.J.K.L.M., and possession of Kh.o.2259 as shown by
letters N.O.P.Q, in the site plan Annexure LC-VI be delivered to the plaintiffs-
applicants.”. On 25th January 2002, the Respondents herein, i.e., the decree
holders filed an execution petition.
3.4 The present appellant, now represented by LRs (son of Mukand Singh)
filed objections to the execution petition on 25th January, 2002, under Order XXI
Rule 58, 97 r/w Section 47 and 151 of the Code Civil Procedure, 19083.
Objections to the Execution
4. The objections so filed4 are reproduced below for reference:
“The objector most respectfully submits as under :-
3
Hereinafter referred to as ‘CPC’
4
Annexure P-6
4-SLP(C) 9202-9204 OF 2016
1. That the above noted execution is pending in this Hon’ble Court and is
fixed for today.
2. That in the instant execution apart from other property, property
bearing Khasra no.2259 (2 Kanals-18 Marlas) is also the subject
matter.
3. That the above said execution application is not maintainable against
the property bearing khasra Nos.2259/1 (1-6), 2259/2 (0-4), 2259/3
(0-12), 2259/1 (0-16) as entered in the jamabandi for 1997-98, which
is owned and possessed by the objector.
4. That the above said execution is liable to be dismissed – qua the
property duly shown in the site plan, which is part of khasra
nos.2259/1, 2259/2, 2259/1 for the reasons noted below :-
i. That the property measuring 14.60 marlas which is part of khasra
no.2259 is owned and possessed by the objector since 25.5.1989 by
virtue of civil court decree passed in civil suit no.107-1 of 27.4.1989
decided on 25.5.1989 by the court of the then Additional Senior Sub
Judge Moga. Since then the objector is the owner in possession of
14.60 marlas out of khasra no.2259 and he has raised huge
construction on it by spending more than Rs.15.0 lacs. After
construction, the objection has rented out parts of the premises
constructed on khasra no.2259 to different persons and in same
portion, he himself is in possession.
ii. That vide warrants of possession dated 8.9.85 passed in execution
No.116-10 of 12.5.84 by the court of Shri B.C. Rajput, P.C.S., the then
Additional Senior Sub Judge Moga, 14.60 marlas out of this property
was given in possession to father of the objector i.e. Mukand Singh.
iii. That father of objector Shri Mukand Singh died in the year of 1993
and he used to reside along with the objector at Ludhiana since 1965
and as such no proper service either of the objector or his father was
ever got effected by the decree holders. Rather the decree holders
have mis-guided the honourable court as he was very well within his
knowledge that Mukand Singh had died in the year of 1993 and he is
residing at Ludhiana. Further more since 1989, the objector is the
owner in possession of the property in question and this fact is in the
knowledge of the decree holder and his Legal representatives, but with
ulterior motive, neither the decree holder Thakur Singh nor his L/Rs
ever informed or brought to the notice of the court that the property
described & shown in the site plan, which is part of khasra No.2259 is
owned and possessed by the objector and by misguiding the
honourable court, got the property into their shares, which was owned
and possessed by the objector.
iv. That the objector had no knowledge regarding the pendency of the
litigation regarding the property in dispute, as he had no occasion to
know the same, as the decree holder willfully and with ulterior
motive, kept the honourable court in dark regarding the possession
and ownership of the objector. Had the decree holder brought the fact
regarding ownership and possession of the objector over the property
5-SLP(C) 9202-9204 OF 2016
in dispute, the Honourable court must have called the objectors. Even
in law, the objector was a necessary party, as he was got title in the
property, which is the subject matter of the property, which is under
execution in the instant petition.
v. That the objector is a bonafide transferee of the property in dispute
vide civil court decree detailed and described above. Mutation
no.6016 on the basis of above said decree was also entered and
sanctioned in his favour. Even in revenue record, name of the objector
is clearly, mentioned, but with ulterior motive, the decree holder has
not brought the revenue record before the Honourable court, so that
truth should not come to the knowledge of the court. Under the garb
of the orders of the Hon’ble Court and by concealment, the decree
holder might get the possession of the property, which is duly shown
in the attached site plan and which bears khasra Nos.2259/1 etc. as
detailed above.
vi. That Varinderjit Gill d/o Dr. Thakur Singh filed an injunction suit
against the objector and his son Manprit Singh, which is also pending
in this Hon’ble Court. Son of the objector is not residing with him
and is living separately at Moga, as he is not on good terms with the
objector. Son of the objector told the objector on 22.1.2002 regarding
the fact that he has received the summons from this Honourable court.
After inquiry it came to the notice of the objector regarding pendency
of injunction suit and from the plaint of the injunction suit, the
objector came to know regarding the passing of the final decree dated
4.2.1998 and the preliminary decree regarding the property in dispute
and he was stunned to know that by frustrating the provisions of law
and by concealment, the decree holder was going to cause a huge
irreparable loss to him by misguiding the Honourable Court.
vii. That it is mentioned here that father of the objector and the
objector himself left Moga in the year 1979 and since then, they are
permanently residing at Ludhiana. It is not understood that how the
service of the objector or his father was got effected. As a matter of
fact, neither the objector nor his father ever received any service nor
they ever refused to accept the service from the Hon’ble Court.
It seems that the D.H. by mis-guiding the Hon’ble Court and
concealment, got the ex-parte decree against father of the objector,
although after 25.9.1989 the objector became the owner in possession
of 14.6 marlas of the property.
5. That both in law & equity the property described in the site plan & of
which the objector was made owner in possession vide judgment &
decree dt. 25.5.1989 is not liable to any execution of any final decree
dt. 4.2.98 or any preliminary decree, as the objector was not party in
the same and he was neither served nor summoned. The objector as
Legal heir of his father Mukand Singh will file appropriate application
for setting aside the final decree & pre-decree.
6. That the D.Hs are stopped by their act & conduct & on the principle of
acquisance to file execution reg: the property shown in the site plan,
6-SLP(C) 9202-9204 OF 2016
as D.Hs have been seen the objector raising the construction, but
never objected them.
7. That cause of action arose to the objector on 22.1.2002 his son
Manprit Singh talked to him reg: pendency of the injunction suit.
8. That the property is situated within the jurisdiction of this Hon’ble
Court.
9. Hence it is prayed that the objection petition may kindly be accepted
and the instant execution be dismissed qua 14.60 marlas of the
property duly shown in the attached site plan, which is owned and
possessed by the objector & in which the D.Hs have got no right, title
or interest.””
5. A response to objections was filed on 22nd March, 20025, where
preliminary objections of locus standi and maintainability were taken. The said
objections are extracted in toto, as under:-
“It is respectfully submitted as under :-
Preliminary Objections :-
1. That the objector has no locus standi to file objections.
2. The objections as framed are not maintainable.
On Merits :-
1. Para No.1 needs no reply
2. Para No.2 is matter of record.
3. Para No.3 is wrong & denied. It is wrong and denied that Khasra
No.2259/1 to 2259/3 & 2259/1 as alleged is owned by objector. The
total area of these Khasra numbers comes to 2K-18M. The objector in
Para No.4(1) below claims 14 ½ marlas on the basis of Civil Court
Decree, but in this para claims the whole. The objector cannot blow
hot & cold.
4. Para no.4 is wrong and denied.
(i) This sub para is wrong and denied, the perusal of decree (Final
shows that D.H. is claiming 1q/4 share in Khasra No.2259. The ¼
share comes to 14 ½ Marlas meaning thereby that whole of Khasra
No.2259 is not claimed by the D.H. It is wrong & denied that objector
has any right, title or interest in the portion of Khasra No.2259 allotted5
Annexure P-7
7-SLP(C) 9202-9204 OF 2016
to D.H. in partition proceeds through civil court. Moreover Mukand
Singh was very much a party to the Civil Court Decree.
(ii) Sub Para (ii) is wrong and denied.
(iii) Sub Para (iii) is wrong and denied. It is wrong & denied that
there was no proper service as alleged of Mukand Singh. Plaintiff
filed suit on 11-06-87 which was decreed by way of preliminary
decree on 15-10-90. Final decree proceedings initiated on 26-3-91
became final on 4-2-98. The objector has no right, title or interest in
the property allotted to D.H. out of Khasra No.2259.
(iv) Sub Para (iv) is wrong and denied. Detailed reply has been given
above.
(v) Sub Para (v) is wrong and denied. Detailed reply has been given
above.
(vi) This sub para is wrong & denied as alleged. Pendency of
injunction suit is admitted. The very objector is a party to the said
suit. It is wrong & denied the objector learnt about the suit on 22-1-
2002 as alleged. Nothing has been concealed by D.H.
(vii) This sub para is wrong & denied. In Sub para (iii) above 1965
is the alleged year & this sub para 1979 is the alleged year of
departure from Moga and whereas the alleged Civil Court Decree is
dated 27-04-89. The fact is that neither the objector nor his father
ever left Moga & reside at Moga. Service was effect in according
with law.
5. Para No.5 is wrong and denied.
6. Para No.6 is wrong and denied.
7. Para No.7 is wrong and denied.
8. Para No.8 is wrong and denied.
9. Para No.9 is wrong and denied.
It is, therefore, prayed that the objection petition may kindly be
dismissed with costs.”
6. The Civil Judge, Junior Division, found the objections raised fully
maintainable. A perusal of the said judgment and order reveals the following
reasons for such a conclusion-
(i) The objector (appellant herein) is a co-sharer in the property,
having one-fourth share thereof. The decree holder does not have a
better title than the objector;
8-SLP(C) 9202-9204 OF 2016
(ii) It was held that if the decree holder is entitled to get his share, the
objector shares such entitlement. The decree only qua the shares of
the decree holder is non-executable without determination of shares
of the other parties and as such, modification of the decree is
required.
(iii) On the aspect of maintainability it was observed that since the
objector is a co-sharer, he possesses the requisite locus standi to file
objections.
(iv) The submission of the decree holder in regard to the maintainability
of the objections was dismissed by the learned Judge having
observed that the principle of res judicata does not apply to
execution proceedings.
7. An appeal against such a finding was filed before the Additional District
Judge, Moga, as Civil Misc. Appeal RT No.105/27.05.2011, which was allowed
vide Order dated 17th January 2012. The reasoning therefor may be summarized
as under:-
(i) No fault can be found with the preliminary decree on the ground
that the learned Civil Court did not decide the shares of the
remaining parties at the time of passing of the decree.
(ii) Reliance was placed on the well-recognized principle that the
executing court cannot go behind the decree nor can it modify the
same. Modification can only be carried out by the court which
passed the decree.
(iii) If there was any defect in service to the predecessor-in-interest of
the objector, such ground should have been raised in modification
of the decree in appeal, however, such recourse was not taken
and instead he filed objections to the execution.
9-SLP(C) 9202-9204 OF 2016
(iv) Relying on Usha Sinha v. Dina Sinha6 it was held that per the
doctrine of lis pendens, the objector was bound by the decree under
execution. Lis pendens on its own is a notice to the purchaser that
he is bound by a decree that may be entered in the pending suit.
Given that the property was transferred in the name of the objector
by his father, Mukand Singh during the pendecy of the suit, he
would be bound by the decree.
(v) The objector ought to have raised all objections before the Civil
Court by filing an application for setting aside the ex-parte decree
against his father and predecessor-in-interest, Mukand Singh and
not by filing objections to the execution.
8. Aggrieved by allowing the appeal, the High Court was approached under
Article 227 of the Constitution of India. The appellant’s revision petition was
dismissed observing that-
(i) The objections raised under Order XXI Rule 58 read with Order
XXI Rule 97 read with Section 47 of the C.P.C. have to be rejected
at the threshold since the latter deals with all issues relating to the
subject of execution and cannot adjudicate on individual rights of
the persons who are not parties. Order XXI Rule 58 enables third
parties to present their claims in relation to the suit. The
objector/appellant being the son of the judgment debtor, is not a
third party to the suit.
(ii) Objection under XXI Rule 97 would have to be discarded by
virtue of Order XXI Rule 102 which bars the creation of any
obstruction, pendente lite.
(iii) If a decision was under Order XXI Rule 58 or 97, an appeal was
the only possible remedy, which the objector has utilized. If the
6
(2008) 7 SCC 144
10-SLP(C) 9202-9204 OF 2016
objection is under Section 47, only revision is maintainable. The
case erroneously made its way to the Court of the Additional
District Judge because the Executing Court allowed “a
meaningless petition to be entertained which contained a reference
to inconsistent provisions”. In other words, if Section 47 was
taken recourse to as a successor in interest, then a petition under
Order XXI Rule 58 or Order XXI Rule 97 could not have been
maintained.
(iv) The duty of determining the share of each party arises only when
such party seeks said determination. The absence of such a prayer
does not take away the competence of a Court to uphold a
plaintiff’s claim and determination of his share.
(v) Having observed thus, the matter was kept pending for the
executing court to appoint a local commissioner who was to be the
Naib Tehsildar of the concerned district. The remit was to identify
the property in Khasra No.2259 and locate 58 Marlas in that
Khasra number; assess the nature of construction and the extent of
vacant land and draw up a plan accordingly.
(vi) The matter was taken up on 16th September, 2015. The relevant
portion of the order is extracted :
“2. The property inspected and the report submitted to
Court by the Naib Tehsildar, Moga would show that
there is no vacant space available in 2259/4 except in
an extent of 50’x33’ adjoining the Maruti Showroom
which is stated to have been sold to yet another sharer.
I was only looking for availability of vacant space on
the western side for that was the property which was
vacant at the time when the suit was instituted. If
constructions have come subsequently and the
defendant himself has allowed for such constructions to
come up after the institution of the suit, he cannot have
the benefit of retention of the property unless the
property where the construction has come was
subsequently allotted to him in the final decree. He had
not applied for final decree and the plaintiff has been
11-SLP(C) 9202-9204 OF 2016
granted the share which is now occupied by the
defendant. The final decree must go to the next logical
stage of making available the property for recovery of
possession and the objection taken by the defendant in
relation to the execution of the decree after the final
decree was passed cannot be sustained. The Court has
the power to demolish the construction, if the
petitioner-objector does not voluntarily do so.”
9. Aggrieved by the above findings, revision was preferred thereagainst and
by order dated 20th November, 2015, the same was dismissed.
10. We have heard learned counsel for the parties. The question that arises
for our consideration is whether the objections filed by the present appellant,
now represented through LRs, are maintainable and warrant interference with
the decree of the learned civil court.
RELEVANT PROVISIONS AND THE POSITION OF LAW
11. As noticed supra, the objections filed are under Order XXI Rules 58 and
97 read with Section 47 of the C.P.C. It is necessary to avert to the provisions
and the position of law settled by this Court prior to proceeding to the merits of
the matter.
“Section 47. Questions to be determined by the Court executing
decree.—
(1) All questions arising between the parties to the suit in which the
decree was passed, or their representatives, and relating to the
execution, discharge or satisfaction of the decree, shall be determined
by the Court executing the decree and not by a separate suit.
(2) …
(3) Where a question arises as to whether any person is or is not the
representative of a party, such question shall, for the purposes of this
section, be determined by the Court.
12-SLP(C) 9202-9204 OF 2016
[Explanation I.—For the purposes of this section, a plaintiff whose
suit has been dismissed and a defendant against whom a suit has been
dismissed are parties to the suit.
Explanation II.—(a) For the purposes of this section, a purchaser of
property at a sale in execution of a decree shall be deemed to be a
party to the suit in which the decree is passed; and (b) all questions
relating to the delivery of possession of such property to such
purchaser or his representative shall be deemed to be questions
relating to the execution, discharge or satisfaction of the decree within
the meaning of this section.]
x x x
ORDER XXI
Execution of Decrees and Orders Payment under Decree
Rule 58 :
58. Adjudication of claims to or objections to attachment of,
property.—(1) Where any claim is preferred to, or any objection is made to the
attachment of, any property attached in execution of a decree on the
ground that such property is not liable to such attachment, the Court
shall proceed to adjudicate upon the claim or objection in accordance
with the provisions herein contained: Provided that no such, claim or
objection shall be entertained — (a) where, before the claim is
preferred or objection is made, the property attached has already been
sold; or (b) where the Court considers that the claim or objection was
designedly or unnecessarily delayed.
(2) All questions (including questions relating to right, title or interest
in the property attached) arising between the parties to a proceeding or
their representatives under this rule and relevant to the adjudication of
the claim or objection, shall be determined by the Court dealing with
the claim or objection and not by a separate suit.
(3) Upon the determination of the questions referred to in sub-rule (2),
the Court shall, in accordance with such determination,— (a) allow
the claim or objection and release the property from attachment either
wholly or to such extent as it thinks fit; or (b) disallow the claim or
objection; or (c) continue the attachment subject to any mortgage,
charge or other interest in favour of any person; or (d) pass such order
as in the circumstances of the case it deems fit.
(4) Where any claim or objection has been adjudicated upon under
this rule, order made thereon shall have the same force and be subject
to the same conditions as to appeal or otherwise as if it were a decree.
13-SLP(C) 9202-9204 OF 2016
(5) Where a claim or an objection is preferred and the Court, under the
proviso to sub-rule (I), refuses to entertain it, the party against whom
such order is made may institute a suit to establish the right which he
claims to the property in dispute; but, subject to the result of such-suit,
if any, an order so refusing to entertain the claim or objection shall be
conclusive.
Resistance of delivery of possession to decree-holder or purchaser
Rule 97 :
97. Resistance or obstruction to possession of immovable
property.—(1) Where the holder of a decree for the possession of immovable
property or the purchaser of any such property sold in execution of a
decree is resisted or obstructed by any person in obtaining possession
of the property, he may make an application to the Court complaining
of such resistance or obstruction.
(2) Where any application is made under sub-rule (1), the Court shall
proceed to adjudicate upon the application in accordance with the
provisions herein contained.”
12. This Court has had occasions to expound on the scope, purpose, and
applicability of Section 47, CPC.
12.1 In Deep Chand v. Mohan Lal7, the purpose of execution proceedings
was taken note of in the following terms:
“5.….the purpose of an execution proceeding is to enable the decree-
holder to obtain the fruits of his decree. In case where the language of
the decree is capable of two interpretations, one of which assists the
decree-holder to obtain the fruits of the decree and the other prevents
him from taking the benefits of the decree, the interpretation which
assists the decree-holder should be accepted. The execution of the
decree should not be made futile on mere technicalities which does
not, however, mean that where a decree is incapable of being executed
under any provision of law it should, in all cases, be executed
notwithstanding such bar or prohibition. A rational approach is
necessitated keeping in view the prolonged factum of litigation
resulting in the passing of a decree in favour of a litigant. The policy
of law is to give a fair and liberal and not a technical construction
enabling the decree-holder to reap the fruits of his decree.”7
(2000) 6 SCC 259
14-SLP(C) 9202-9204 OF 2016
The observations in Rahul S. Shah v. Jinendra Kumar Gandhi & Ors.8 by aBench of three learned Judges in this regard are also educative. The scope of the
section is recognized as:-
“24. In respect of execution of a decree, Section 47 CPC contemplates
adjudication of limited nature of issues relating to execution i.e.
discharge or satisfaction of the decree and is aligned with the
consequential provisions of Order 21 CPC. Section 47 is intended to
prevent multiplicity of suits. It simply lays down the procedure and
the form whereby the court reaches a decision. For the applicability of
the section, two essential requisites have to be kept in mind. Firstly,
the question must be the one arising between the parties and secondly,
the dispute relates to the execution, discharge or satisfaction of the
decree. Thus, the objective of Section 47 is to prevent unwanted
litigation and dispose of all objections as expeditiously as possible.
25. These provisions contemplate that for execution of decrees,
executing court must not go beyond the decree. However, there is
steady rise of proceedings akin to a retrial at the time of execution
causing failure of realisation of fruits of decree and relief which the
party seeks from the courts despite there being a decree in their
favour. Experience has shown that various objections are filed before
the executing court and the decree-holder is deprived of the fruits of
the litigation and the judgment-debtor, in abuse of process of law, is
allowed to benefit from the subject-matter which he is otherwise not
entitled to.”12.2 It is all too well-settled that a Court cannot ‘go behind’ a decree.
Reference may be made to Rajasthan Financial Corpn. v. Man Industrial
Corpn. Ltd.9; SBI v. Indexport Registered10; J&K Bank Ltd. v. Jagdish C.
Gupta11; and Rajasthan Udyog v. Hindustan Engg. & Industries Ltd.12
8
(2021) 6 SCC 418
9
(2003) 7 SCC 522
10
(1992) 3 SCC 159
11
(2004) 10 SCC 568
12
(2020) 6 SCC 660
15-SLP(C) 9202-9204 OF 2016
12.3 In Sushil Kumar Mehta v. Gobind Ram Bohra13, it has been held that
if a decree is passed by a competent court after due adjudication of merits, it
operates as re judicata. If the same is nullity, its validity can be questioned at
any stage. It was observed:
“26. Thus it is settled law that normally a decree passed by a court of
competent jurisdiction, after adjudication on merits of the rights of the
parties, operates as res judicata in a subsequent suit or proceedings
and binds the parties or the persons claiming right, title or interest
from the parties. Its validity should be assailed only in an appeal or
revision as the case may be. In subsequent proceedings its validity
cannot be questioned. A decree passed by a court without jurisdiction
over the subject matter or on other grounds which goes to the root of
its exercise or jurisdiction, lacks inherent jurisdiction. It is a coram
non judice. A decree passed by such a court is a nullity and is non est.
Its invalidity can be set up whenever it is sought to be enforced or is
acted upon as a foundation for a right, even at the stage of execution
or in collateral proceedings. The defect of jurisdiction strikes at the
authority of the court to pass a decree which cannot be cured by
consent or waiver of the party. If the court has jurisdiction but there is
defect in its exercise which does not go to the root of its authority,
such a defect like pecuniary or territorial could be waived by the party.
They could be corrected by way of appropriate plea at its inception or
in appellate or revisional forums, provided law permits. The doctrine
of res judicata under Section 11 CPC is founded on public policy. An
issue of fact or law or mixed question of fact and law, which are in
issue in an earlier suit or might and ought to be raised between the
same parties or persons claiming under them and was adjudicated or
allowed uncontested becomes final and binds the parties or persons
claiming under them. Thus the decision of a competent court over the
matter in issue may operate as res judicata in subsequent suit or
proceedings or in other proceedings between the same parties and
those claiming under them.
(Emphasis Supplied)
This was followed/referred in Sabitri Dei v. Sarat Chandra Rout14, JamiaMasjid v. K.V. Rudrappa15.
13
(1990) 1 SCC 193
14
(1996) 3 SCC 301
15
(2022) 9 SCC 225
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12.4 The executing court is to determine all questions inter se the parties tothe decree, as flows from the statutory text, have been reiterated in
Jugalkishore Saraf v. Raw Cotton Co. Ltd.16 by SR Das, J. (as his Lordship the
then was) in the following terms –
“Section 47 of the Civil Procedure Code does require that the
executing court alone must determine all questions arising between
the parties or their representatives and relating to the execution,
discharge or satisfaction of the decree and authorises it even to treat
the proceedings as a suit.”
Similar observations have been made by Vivian Bose, J. in Jai Narain Ram
Lundia v. Kedar Nath Khetan17 as follows –
“23. The only question that remains is whether the executing court can
consider whether the defendant is in a position to perform his part of
the decree. But of course it can. If the executing court cannot consider
this question who can? The executing court has to see that the
defendant gives the plaintiff the very thing that the decree directs and
not something else, so if there is any dispute about its identity or
substance nobody but the court executing the decree can determine it.
It is a matter distinctly relating to the execution, discharge and
satisfaction of the decree and so under Section 47 of the Civil
Procedure Code, it can only be determined by the court executing the
decree…”
12.5 An executing court is to execute the decree as it stands and cannot modify
its terms. It has been so held in C.F. Angadi v. Y.S. Hirannayya18. The relevant
extract is as under:
“10. A Court executing the decree shall execute it as it stands. It
cannot modify or vary the terms of the decree. No exception can be
taken to that general principle. But the execution court has the right to
construe a decree in the light of the applicable provisions of law and if
in this case on a construction of the decree in the light of the16
1955 SCC OnLine SC 26
17
1956 SCC OnLine SC 50
18
(1972) 1 SCC 191
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applicable provision of law, it found that the deposit made by the
respondent on January 2, 1960, was according to law a deposit in
compliance with the terms of the decree, then the execution Court was
not varying the terms of the decree but executing the decree as it stood
after considering the effect of the deposit in the light of the relevant
law.”
[See also: Deepa Bhargava & Anr. v. Mahesh Bhargava & Ors.19]12.6 A decree passed by a Court not having the jurisdiction to do so, does not
ipso facto, render it illegal. The recourse is for the aggrieved to have it set aside
as per law. If they fail to do so, they shall be bound thereby. In Rafique Bibi v.
Syed Waliuddin20 it was held:
“8. A distinction exists between a decree passed by a court having no
jurisdiction and consequently being a nullity and not executable and a
decree of the court which is merely illegal or not passed in accordance
with the procedure laid down by law. A decree suffering from
illegality or irregularity of procedure, cannot be termed inexecutable
by the executing court; the remedy of a person aggrieved by such a
decree is to have it set aside in a duly constituted legal proceedings or
by a superior court failing which he must obey the command of the
decree. A decree passed by a court of competent jurisdiction cannot be
denuded of its efficacy by any collateral attack or in incidental
proceedings.”The view taken herein was affirmed by a Bench of three judges in Balvant N.
Viswamitra v. Yadav Sadashiv Mule21, and followed recently, in Asma Lateef
v. Shabbir Ahmad22.
12.7 Execution petition dismissed for default of the decree-holder does not
operate as res judicata qua “further execution of the decree.” Shivashankar
Prasad Shah v. Baikunth Nath Singh23 records the position of law as below:-
19
(2009) 2 SCC 294
20
(2004) 1 SCC 287
21
(2004) 8 SCC 706
22
(2024) 4 SCC 696
18-SLP(C) 9202-9204 OF 2016
“6. The courts in India have generally taken the view that an execution
petition which has been dismissed for the default of the decree-holder
though by the time that petition came to be dismissed, the judgment-
debtor had resisted the execution on one or more grounds, does not
bar the further execution of the decree in pursuance of fresh execution
petitions filed in accordance with law — see Lakshmibai Anant
Kondkar v. Rayji Bhikaji Kondkar [XXXI, BLR 400] . Even the
dismissal for default of objections raised under Section 47 of the Civil
Procedure Code does not operate as res judicata when the same
objections are raised again in the course of the execution—see Bahir
Das Pal v. Girish Chandra Pal [AIR 1923 Cal 287] ; Bhagwati
Prasad Sah v. Radha Kishan Sah [AIR 1950 Pat 354] ; Jethmal v. Mst.
Sakina [AIR 1961 Raj 59] ; Bisvavannath Kundu v. Smt Subala
Dassi [AIR 1962 Cal 272] . We do not think that the decision
in Ramnarain v. Basudeo [ILR XXV Pat 595] on which the learned
counsel for the appellant placed great deal of reliance is correctly
decided. Hence, we agree with the High Court that the plea of res
judicata advanced by the appellant is unsustainable.”
A judgment of far more recent vintage reiterates this position. See Bhagyoday
Coop. Bank Ltd. v. Ravindra Balkrishna Patel24.
12.8 In landlord-tenant disputes, writ petitions cannot be entertained when
the executing court is seized of applications seeking setting aside of decree of
eviction and order of possession. This Court in Hameed Kunju v. Nazim25
held-
“26. In any case, in our considered view, the executing court having
seized of the applications filed by the respondent, there was no
justification on the part of the High Court to have entertained the writ
petition and decided them like an original court. All that the High
Court, in such circumstances, could do was to request the executing
court to dispose of the pending applications (IAs) filed by the
respondent on their respective merits leaving the parties to challenge
the orders once passed on such applications by filing appeal, before
the appellate authorities. It was, however, not done.”
23
(1969) 1 SCC 718
24
(2022) 14 SCC 417
25
(2017) 8 SCC 611
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12.9 In scenarios where a compromise decree is entered into between the
parties, the question to be asked is whether the Court whose duty it is to
execute the decree is the one to have recorded the compromise. The following
discussion made in Lakshmi Narayanan v. S.S. Pandian26 is insightful :-
“11. Where in any execution proceedings objection to executability of
a decree is taken under Section 47 CPC on the ground that by virtue of
a compromise, the decree got extinguished and became inexecutable,
the germane question that should be asked is whether the compromise
was recorded by the court whose duty it is to execute the decree.
12. As long back as in 1939, the Privy Council in Oudh Commercial
Bank Ltd. v. Thakurain Bind Basni Kuer [(1938-39) 66 IA 84 : AIR
1939 PC 80] laid down the law on the subject as follows:
“If it appears to the court, acting under Section 47, that the
true effect of the agreement was to discharge the decree
forthwith in consideration of certain promises by the
debtor, then no doubt the court will not have occasion to
enforce the agreement in execution proceedings, but will
leave the creditor to bring a separate suit upon the
contract. If, on the other hand, the agreement is intended
to govern the liability of the debtor under the decree and to
have effect upon the time or manner of its enforcement, it
is a matter to be dealt with under Section 47. In such a
case to say that the creditor may perhaps have a separate
suit is to misread the Code, which by requiring all such
matters to be dealt with in execution discloses a broader
view of the scope and functions of an executing court.
Their Lordships are in agreement with the statement in the
case of Gobardhan Das [Gobardhan Das v. Dau Dayal,
ILR (1932) 54 All 573 : AIR 1932 All 273] that ‘in
numerous cases a compromise between the decree-holder
and the judgment-debtor entered into in the course of
execution proceedings, which was duly recorded, has been
enforced’ and they are not of opinion that the practice,
which is both widespread and inveterate, is contrary to the
Code. They are of opinion that in the present case the
compromises can and should be enforced in these
execution proceedings.”
14. In a case where parties compromise after the decree in a case has
been passed, the effect of the compromise on the executability of the26
(2000) 7 SCC 240
20-SLP(C) 9202-9204 OF 2016
decree depends upon the intention of the parties, which is a mixed
question of law and fact and has to be determined by the executing
court on an application under Section 47 CPC on interpretation of the
decree and the compromise in the light of the facts and circumstances
of each case. If on such determination it is gathered that the intention
of the parties is to extinguish the decree and either the decree-holder
or the judgment-debtor got the compromise recorded under Rule 2 of
Order 21 CPC by the court whose duty it is to execute the decree, the
execution of the decree cannot be proceeded with by the executing
court. But if the intention of the parties is to keep the decree alive and
to give effect to it in the manner agreed upon between the parties in
the compromise, the decree will be given effect to accordingly or
executed as it is depending upon whether the compromise is recorded
by the court as aforementioned or not.”
(Emphasis Supplied)
13. Having considered the application of Section 47 CPC, as above, let us now
turn to the present facts. The High Court, in our view, has correctly held that the
objector-appellant is not a third party to the dispute. The objections brought by
him can rightly be considered under this section. In order to properly appreciate
the genesis of the objections, let us take an example. A suit is filed by ‘A’ and
‘A1 ’ for half share of the piece of land owned jointly by them with others such
as ‘B’. In time, the suit is decreed and ‘A’ and ‘A1’ are declared owners and
possessors of said half of the property. Further down in time, a 2nd suit comes to
be filed by ‘B’ against ‘C’ and others, including ‘A’ and ‘A1’, seeking one-fourth
share of the very same piece of land, which was the subject matter of the suit
filed earlier by ‘A’. The suit was accordingly decreed granting him rights over
one fourth share in the property. Objections come to be filed by the successors in
interest of A, stating that the very same piece of land granted to their forebears
by the earlier suit, now stands granted to ‘B’.
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14. We have already noted above that the dispute, which has travelled up to this
Court, pertains to the execution of decree of the second partition suit. The share
sought to be divided was a result of the first partition suit. Let us, therefore,
understand the import of the first suit. The prayer made thereunder, is
reproduced below:
“Suit for declaration to the effect that plaintiffs are owners of ½ share
of the land measuring Khasra No.6363 Khatauni No. 7257, Khasra
No.2259 (2 Kanals-18Marlas) as entered in Jamabandi 1969-70
situated at Moga Mehla Singh and entitled to separate possession of ½
share of the land in question and possession by land in dispute way of
consequential relief or to any other relief to which the plaintiffs are
entitled.”The Court on 22nd September, 1979 decreed the suit in favour of the Plaintiffs in
the following terms.
“As a result of my findings on the above issues, I decree the suit of the
Plaintiffs for a declaration that there are the owners of half share of the
suit land and for possession. The defendants will also bear the costs of
the suit.”
For clarity, it is mentioned that Mukand Singh, father of the objector/appellantherein was the plaintiff in the said suit. An appeal titled ‘Civil Appeal No.16-II
of 1982, Dr. Thakar Singh v Mukand Singh & Ors.’ was filed before the
Additional District Judge, Faridkot, which was dismissed as meritless vide
judgment dated 18.10.1982. Handing over of possession was recorded by
Additional Senior Sub-Judge, Moga, on 21st September, 1985 to the LRs of
Mukand Singh and Chanan Singh.
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Copy of Nazir Report
In the Court of Sh. B.C. Rajput, PCS, Addl. Senior Sub Judge,
Moga.
Ex. No. 116-10of 05/12.84
Decided on:
21.09.85
Mukand Singh S/o Lal Singh, Chaman Singh deceased represented by
Smt. Parakash Kaur, window, Parvinder Kaur, & Jatinder Kaur
daughter of Chaman Singh rs/of Moga.
Vs.
Lakhminder Singh S/o Bachan Singh & Ors.
Sir,
On spot, after demarcation possession of land measuring half of
the 58 Marlas i.e. 29 Marlas given to decree holder. On the sport 14 1/2
marlas of land towards each side of the property of Dwarka Dass and
14 ½ marlas of land towards his west side has been given to Jatinder
Kaur, Parvinder Kaur, Smt. Parkash Kaur and sons of Mukund Singh
decree holder. I did not face any difficulty and during the process,
munadi was conducted and munadi fee was taken charged from the
decree holder. Report is presented.
“Amar Nath N.N. 8.9.85
Sd/- Decree holder
1. Smt. Parkash Kaur wd/o Chanan Singh
2. Parvinder Kaur D/o Chanan Singh;
3. Jatinder Kaur D/o Chanan Singh;
4. Joginder Singh Sodhi S/o Mukand Singh, all residents of Moga.
Witnesses:
5. Matinder Singh S/o Banta Singh (Witness)
6. Sh. Rupinder Singh S/o Nazar Singh (Witness)
7. Sh. Sarawant Singh Arora S/o Dayal Singh (Witness)
Sir, possession given. Sd/- dated 20.08.85
15. To put the grievance of the objector in context, it is that the lands decreed
in second partition suit included Khasra No.2259 and in the execution, it is that
part of the land that he received from his father Mukand Singh, which has been
shown as belonging to the decree holders-respondents herein.
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16. With the appeal before the Additional District Judge, Faridkot, being
dismissed, the decree of 1979 in the first partition suit has attained finality.
Therefore, the remit of the second partition suit necessarily has to exclude the
portions which already stand decreed per the first partition suit. As already
noticed above, by virtue of the first partition decree, the legal representatives of
Mukand Singh and Chanan Singh have been in possession of the decreed lands
since 21st September, 1985. Any decision qua Khasra No.2259 taken in the
second partition suit has to protect the property as allotted to the legal
representatives of the above-named persons. The Trial Court in its judgment
dated 15th October, 1990 records that ‘as regards khasra no.2259 and 2262
plaintiff alongwith Nand Singh are owners in possession of 1/2 share (1/4 share
each) out of these Khasra numbers…’. It is evident from the above that Thakkar
Singh and Nand Singh both acknowledged that their rights extended only to half
the share of Khasra No.2259.
17. It is unclear from the record as to whether the portion of Khasra No.2259
styled ‘NOPQ’ by the final decree is the very same plot of land granted to the
LRs of Mukand Singh by the warrant of possession dated 21 st September 1985,
or not. Till and such time a clear determination in this regard is made, this
dispute cannot be put to rest since there is no dispute as to the entitlement of
one-fourth share. It is only, what part of the land constitutes the respective one-
fourth share which has led to the present judgment being passed. The
respondents herein have alleged that the warrant of possession is a ‘self prepared
24-SLP(C) 9202-9204 OF 2016
document’ and ‘not genuine’ since there was no demarcation of shares. Both
these questions are not for this Court to decide.
18. The impugned orders of the High Court dismissing the revision application
are to be interfered with, for that instance, the procedure has managed to
compromise the substantive right of the objector. The ground taken by the High
Court to dismiss the revision application is that the appellant herein misapplied
the provisions in filing his objections before the executing court, inasmuch as
the objection petition mentioned both Section 47 as also Order XXI Rule 58 and
97 of the CPC. The High Court found that both these sets of provisions could
not be applied together given that the method of assailing the orders passed
therein are different and cannot co-exist. Whilst looking at it purely from a
procedural point of view, this may have some merit; however, as has been long
established, procedural irregularity cannot defeat substantive rights or cannot
subvert substantive justice. Since the objector or his father already had a decree
in their favour, fruits thereof cannot be denied to them by virtue of the fact that
while attempting to protect their rights in a subsequent suit which would have
affected their enjoyment of such property, the Sections or Orders under which
they sought such protection, were incorrect.
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19. This Court cannot help but be reminded of the famous saying that
procedure is the handmaiden of justice. This Court in Jai Jai Ram Manohar Lal
v. National Building Material Supply, Gurgaon27 :
“5. …. Rules of procedure are intended to be a handmaid to the
administration of justice. A party cannot be refused just relief merely
because of some mistake, negligence, inadvertence or even infraction
of the Rules of procedure.”We also find support for our conclusion in the judgment of this Court passed in
Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Another28 :
“17. Non-compliance with any procedural requirement relating to a
pleading, memorandum of appeal or application or petition for relief
should not entail automatic dismissal or rejection, unless the relevant
statute or rule so mandates. Procedural defects and irregularities which
are curable should not be allowed to defeat substantive rights or to
cause injustice. Procedure, a handmaiden to justice, should never be
made a tool to deny justice or perpetuate injustice, by any oppressive
or punitive use. The well-recognised exceptions to this principle are:
(i) where the statute prescribing the procedure, also prescribes
specifically the consequence of noncompliance;
(ii) where the procedural defect is not rectified, even after it is
pointed out and due opportunity is given for rectifying it;
(iii) where the non-compliance or violation is proved to be
deliberate or mischievous;
(iv) where the rectification of defect would affect the case on
merits or will affect the jurisdiction of the court;
(v) in case of memorandum of appeal, there is complete absence of
authority and the appeal is presented without the knowledge,
consent and authority of the appellant.”
20. Further, The High Court with respect to the first partition suit, observed that
it could not have been decreed by virtue of the Punjab Pre-Emption (Repeal)
27
(1969) 1 SCC 869
28
(2006) 1 SCC 75
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Act, 1973, but then noted that this is not an aspect which requires delineation
given that the entitlement of share is admitted by the parties. Be that as it may.
We find the said observation to be in error for the reason that the discussion of
pre-emption in the judgment rendered in the first partition suit appears to
correspond to an earlier transaction having taken place somewhere in the 1930s
and 1940s by one Lal Singh, father of the plaintiffs in the first partition suit.
21. In view of the aforesaid discussion, the matter is remanded to the First
Appellate Court to take a decision on the objections of the appellant afresh, on
merits. It stands clarified that this Court has not expressed any view on the facts
of the case. Considering the fact that this matter has been doing the rounds of
various Court halls for more than two decades, we request the concerned Court
to take all steps necessary for expeditious disposal. After all it was as far back as
1872 that the Privy Council in General Manager of the Raj Durbhunga v.
Coomar Ramaput Sing29 lamented that the problems of the litigant in India,
begin once he has obtained the decree. In Messer Griesheim GmbH v. Goyal
MG Gases Pvt Ltd.30 a hundred and fifty years later this Court observed that
‘there has been no improvement and still the decree holder faces the same
problem what was being faced in the past.’ When a litigant approaches the
Court, what he is interested in getting is not the imprimatur of the Court on his
right over a certain amount of money or in this case property, what he actually
29
(1871-72) 14 MIA 605:20 ER 912
30
(2022) 11 SCC 549
27-SLP(C) 9202-9204 OF 2016
wants is the actual money and/or property, and the rights that flow from
possessing it, i.e., enjoyment of the same in whatever manner he sees fit.
Needless to add, it shall be open to any party to the instant lis to approach this
Court subsequent to the disposal, should the need so arise.
22. The appeals are allowed to the aforesaid extent. The Registry is directed to
forward a copy of this judgment to the learned Registrar General of the High
Court of Punjab & Haryana who shall then ensure its passage to the concerned
Court, expeditiously.
Pending application(s), if any, shall stand disposed of accordingly.
….……………………J.
(J.B. PARDIWALA)
….……………….…..J.
(SANJAY KAROL)
New Delhi;
October 17, 2024
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