Punjab-Haryana High Court
Surjit Kaur Loety W/O Arjan Sing Loety vs State Of Punjab Chandigarh Thr Its Chief … on 26 September, 2024
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CR No.6711 of 2018(O&M) -1-
CR No.1342 of 2024(O&M)
In the High Court of Punjab and Haryana at Chandigarh
Date of Decision: 26.09.2024
1. CR No.6711 of 2018(O&M)
Surjit Kaur Loety .....Petitioner
Versus
State of Punjab and others ....Respondents
Present: Mr. D.V. Sharma, Senior Advocate with
Ms. Shivani Sharma, Advocate for the petitioner.
Ms. Shruti, AAG, Punjab.
Mr. Anand Chibbar, Senior Advocate with
Mr. Amitabh Tewari, Advocate for respondents No.5 to 9.
****
2. CR No.1342 of 2024(O&M)
M/s Ritesh Industries Ltd. and others .....Petitioners
Versus
State of Punjab and others ....Respondents
Present: Mr. Anand Chibbar, Senior Advocate with
Mr. Amitabh Tewari, Advocate for the petitioners.
Ms. Shruti, AAG, Punjab.
Mr. D.V. Sharma, Senior Advocate with
Ms. Shivani Sharma, Advocate for respondent No.5.
*****
CORAM: HON'BLE MRS. JUSTICE RITU TAGORE
****
RITU TAGORE, J.
1. By this common order, I propose to address the above-
captioned revision petitions, as parties involved are same and issues are
closely related. The submissions have also been addressed together in both
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the petitions.
2. For the sake of reference, facts are being taken from CR
No.6711 of 2018.
3. The challenge in this petition (CR-6711-2018) is directed
against the order dated 19.07.2018 (Annexure P-4), whereby learned 1st
Appellate Court, allowed the application under Order 1 Rule 10 of the Code
of Civil Procedure, 1908 (in short ‘CPC’), moved by applicant- companies,
M/s Ritesh Industries Ltd and others through director Roop Kishore
Fatehpuria. While in the revision petition (CR No.1342 of 2024), order
dated 01.02.2024 (Annexure P-1) is in challenge, whereby learned Civil
Judge (Junior Division), Ludhiana, dismissed the application
(Annexure P-10), moved by the petitioners/third party objectors, M/s Ritesh
Industries and others, seeking to stay the proceedings in Execution Petition
No.933 of 2017.
4. At this stage, it would be beneficial to recapitulate the facts
briefly to understand the legal and factual issues involved in the petitions,
seeking redressal.
5. The petitioner, Surjit Kaur Loety, through General attorney,
(the plaintiff before the learned Trial Court), instituted a suit for declaration,
permanent and mandatory injunction, against the State of Punjab and others,
respondents No.1 to 4, seeking to declare award dated 15.03.1994 passed by
the Collector, for acquisition of the land by the State, as illegal, null and
void, qua 1/2 share of the plaintiff in the land measuring 9705 square yards,
forming part of Khata No.133/165, Khasra Nos.22//14, 17/1, 24 situated at
village Mundian Khurd, Tehsil and District Ludhiana, on various grounds
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as detailed in the plaint and to restore the possession of the land of her share.
From the facts on record, land admeasuring 800 acres, including the land of
the plaintiff falling in Khasra No.22//14, 17/1, 24 in village Mundian Khurd,
Tehsil and District Ludhiana, was acquired by the State of Punjab through
Directorate of Industries, to develop Focal Point, Phase 8, Dhandari Kalan,
Ludhiana. Accordingly, an award dated 15.03.1994 was passed. 40 acres of
land vide letter No.US-337-U dated 22.04.1994 issued by Directorate of
Industries, Punjab, Chandigarh was allotted to Ritesh Industries (respondent
No.5) and sale deeds were executed in favour of respondent No.5. Based on
such allotment, possession was also delivered to respondent No.5, who
claimed to have developed the area by spending huge amount. Respondents
No.6 to 9, being sister concerns of respondent No.5, claimed to be owners in
possession of the land measuring 40 acres, on the basis of allotment.
6. The civil suit, as filed by the petitioner, was decreed in her
favour vide judgment and decree dated 26.07.2016 (Annexure P-1). The
State, respondents No.1 to 4, preferred the appeal which is statedly pending
before the 1st Appellate Court for adjudication. It is during the pendency of
the appeal, respondents No.5 to 9, moved an application, under Order 1 Rule
10 CPC, seeking their impleadment in the appeal claiming them to be
necessary parties to the suit/appeal, raising several pleas and facts in support
of their claim, primarily claiming them to be owner in possession of 40 acres
of the acquired land, as allottees.
7. The application was resisted by the petitioner. The learned 1st
Appellate Court, on appraisal of the respective pleadings of the parties and
the evidence placed in support thereof allowed the application, permitting
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respondent No.2 to be impleaded as respondent, in the appeal, vide the
impugned order dated 19.07.2018 (Annexure P-4).
8. Learned counsel for the petitioner submits that impugned order is
against the basic tenets of Order 1 Rule 10 CPC. It is settled position of law
that impleadment of a person as a party is permissible only when presence of
such a party is necessary for the effective and complete adjudication of the
issues involved in the lis. In the civil suit filed by the petitioner, the issue
was to the legality of award dated 15.03.1994 passed by the Collector,
challenging the impropriety of the procedure adopted by the State, while
acquiring the land and non-payment of compensation to the petitioner. The
presence of respondents No.5 to 9 was not necessary for the adjudication of
the issues raised by the petitioner in the civil suit.
9. Learned counsel further contends that it is trite law that plaintiff
is the master of his suit and cannot be compelled to implead a person against
whom the plaintiff claims no relief. In the civil suit, no relief was claimed
against respondents No 5 to 9. Learned counsel submits that it is also an
established principle of law that if a person is not a party to the
suit/proceedings, then the decree/order passed in said suit is not binding
upon him. Therefore, the plea that judgment and decree dated 26.07.2016
(Annexure P-1) affects respondents No.5 to 9 is ill-founded. It is stated that
respondents No.5 to 9 have no concern with the suit land. The alleged
allotment on which the application was based, stands cancelled in their
favour. This fact was recorded by the learned State Counsel on behalf of the
State of Punjab and was duly noted by the learned 1st Appellate Court in the
impugned order, however, same was conveniently ignored, while deciding
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the application (Annexure P-2). Learned counsel submits that once the State
made a statement that allotment in favour of respondents No.5 to 9, stands
cancelled, they have no right, interest in the property involved and the
award, subject matter of the suit. They were not necessary or even proper
parties to be impleaded in the suit. In these circumstances, their presence in
the decision of appeal is not at all necessary in either capacity, as a defender
or a prosecutor of the appeal. The observations made by learned 1st
Appellate Court drawing the conclusions, holding respondent No.2 as
necessary party in appeal, are, therefore, indefensible in the eyes of law and
should be set aside.
10. It is further submitted by learned counsel for the petitioner/
plaintiff that application moved by respondents No.5 to 9 was vague,
without specifying which of the companies was to be impleaded.
Furthermore, the application should have been filed before the learned Trial
Court, and not in the appeal. No application for impleadment at appellate
stage is maintainable. Learned counsel submits that the learned 1st Appellate
Court fell in grave error in allowing the application, placing reliance on the
case law titled Haryana State Industrial Development Corporation Limited
Vs. Udal and others etc., 2013 (3) Apex Court Judgments (SC) 441; Union
of India and others Vs. Special Tehsildar (ZA) and others, 1996 (2) SCC
332; Vishal Goyal Vs. Vishranti City Residents Welfare Society and others,
2017(16) SCC 453 and judgment of Kerala High Court in Subash Vs.
Patharam Educational & Cultural Society, 2012(4) KerLJ 177, which were
inapplicable to the facts of the present case. A prayer is made to allow the
revision petition and set aside the order. In support of his contention, he has
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referred to the judgments of Hon’ble the Supreme Court of India in
Mohamed Hussain Gulam Ali Shariffi Vs. Municipal Corporation of
Greater Bombay and others, 2020 (14) SCC 392; Vidur Impex and
Traders Pvt. Ltd. and others Vs. Tosh Apartments Pvt. Ltd. and others,
2012(8) SCC 384; Mumbai International Airport Pvt. Ltd. Vs. Regency
Convention Centre & Hotels Pvt. Ltd. and others, 2010 (7) SCC 417 and of
this Court in Hazura Singh Vs. Sukhdev Singh, 1996 (3) RCR (Civil) 419.
11. Contrarily, learned counsel for respondents No.5 to 9 argued
that respondent No.5, M/s Ritesh Industries Ltd. is now known as Ritesh
Properties and Industries Ltd. Respondents No.2 to 5 were the sister
companies of respondent No.5, duly incorporated as per the Companies Act,
2013. Respondents No.6 to 8 have been amalgamated with respondent
No.5, as per order dated 18.08.2021 (Annexure R-1), passed by NCLT, New
Delhi Bench (appended with CM-22514-CII-2023). The respondent No.5 is
the proprietor of respondent No.9.
12. Learned counsel contends that dispute started with acquisition
of land, measuring 800 acres, by the State of Punjab. Out of which, the
petitioner/plaintiff owned 1/2 share out of 9705 square yards and award
dated 15.03.1994 was passed. 40 acres of land was allotted to M/s Ritesh
Industries Ltd. Subsequently, conveyance deeds were executed in favour of
M/s Ritesh Industries Ltd. and its group companies and mutations were also
sanctioned in their favour and possession was also delivered.
13. Learned counsel submits that petitioner/plaintiff, filed a suit for
declaration, challenging the award of acquisition dated 15.03.1994 and also
sought mandatory injunction, directing respondents No.1 to 4, to restore the
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possession of above land to her. Learned counsel submits that petitioner
was well aware that land measuring 40 acres was allotted to respondents
No.5 to 9 and they were never made a party in the civil suit. In this regard
reference was made to the pleadings raised by the petitioner/plaintiff
wherein she referred to the allotment of land to respondents No.5 to 9.
14. Learned counsel contends that respondents No.5 to 9 are owners
in possession of 40 acres of land out of 800 acres acquired by respondents
No.1 to 4. They are necessary and material parties. The Civil Court vide
decree dated 26.07.2016 (Annexure P-1) directed respondents No.1 to 4 to
restore the possession of the above land and outcome of these proceedings
have a direct impact on their right of ownership and possession of the land.
15. Learned counsel submits that in the appeal, preferred by
respondents No.1 to 4, which is currently pending before the 1st Appellate
Court, respondents No.5 to 9 filed an application under Order 1 Rule 10
CPC taking plea of allotment of the suit land to them by respondents No.1 to
4, consequently their ownership and possession. The petitioner contested
the application, filed the reply dated 20.04.2018 (Annexure P-3). Learned 1st
Appellate Court, while allowing the application vide order dated 19.07.2018
(Annexure P-4) rightly noted that respondents are necessary parties, as they
have direct interest in the suit land.
16. Learned counsel submits that the power of the learned Trial
Court, as envisaged under Order 1 Rule 10(2) CPC, can as well be exercised
by the learned 1st Appellate Court, as per Section 107 of CPC. In this regard,
amendment was inserted to Section 107(2) CPC, empowering the learned 1st
Appellate Court to have the same powers and perform as nearly as may be
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the same duties as are conferred and imposed by the CPC on the Courts of
original jurisdiction. Learned counsel submits that in Haryana State
Industrial Development Corporation Limited’s case (supra), relied upon by
learned 1st Appellate Court, may have distinguishable facts but the Hon’ble
Apex Court, after considering the other decisions, culled out the general
principles in para 8 of the judgment holding that the Appellate Court has
inherent powers to permit parties to be added to appeal in a suitable case and
the jurisdiction under Order 1 Rule 10 (2) CPC can be exercised by virtue of
Section 107(2) CPC.
17. Learned counsel for respondents No.5 to 9, contends that
allotment of land made in their favour by the department has never been
cancelled and refers to order of Hon’ble the Supreme Court dated
14.02.2000 passed in SLP, which was also mentioned to by the
petitioner/plaintiff in her plaint. The reference was also made to the facts
submitted by the State (defendants No.1 to 4 before learned Trial Court), in
the written statement, which pleads allotment of 40 acres of land to
respondents No.5 to 9 and concealment of the civil suit contested by her
against Ritesh Industries, Ludhiana. The learned counsel states that even if
the cancellation of allotment of land in favor of respondents No. 5 to 9 is
accepted (though not admitted by the respondents No. 5 to 9), this debatable
issue must be decided by the learned Court. Furthermore, the possession of
the respondents No. 5 to 9 over the suit property (40 acres) is not denied by
the petitioner. In these facts and circumstances, the presence of respondents
No.5 to 9 is necessary for the complete decision of the controversy in
question.
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18. Learned counsel submits that learned 1st Appellate Court noted
the facts regarding the allotment of land to respondents No.5 to 9, their
subsequent possession and the petitioner/plaintiff’s admission of these facts
in the plaint, alongwith the registration of the FIR against the petitioner for
demolition of outer wall of the property of respondents No.5 to 9. It is stated
by the learned counsel that the petitioner has sought, both a decree of
declaration and injunction with respect to the suit land, which directly
affects the claims of the respondents No. 5 to 9, in the suit land. Therefore,
respondents No. 5 to 9 are not strangers to the case. The learned 1st
Appellate Court rightly observed that respondents No.5 to 9 have a direct
interest in the suit property and the decree would impact their alleged rights.
Consequently, their presence is necessary for the adjudication of the matter
at issue. It is stated that the impugned order is valid in the eyes of law. There
is no merit in the petition and same be dismissed and a prayer was made for
vacation of stay granted by this Court on 04.10.2018.
19. Learned State counsel by way of reply dated 19.09.2024 of Ms.
Promila Sharma, PCS, Collector, Land Acquisition, Department of
Industries and Commerce, Punjab, stated that land allotted to M/s Ritesh
Industries, Ludhiana was never cancelled as per their available record.
Learned State counsel in support of the arguments placed on record the
attested copy of the statement of Ravinder Singh, Superintendent, attested by
Superintendent (LAC), Department of Industries and Commerce, given
before the learned Civil Judge (Junior Division), Ludhiana, and the copy of
Email dated 24.09.2024 given by the learned counsel for the petitioner,
Surjit Kaur Loety, acknowledging that documents of cancellation were not
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available with her.
20. To rebut the contentions of the counsel for the respondents, the
learned counsel for the petitioner, referred to the judgment of Delhi High
Court in Ritesh Properties & Industries Ltd. Vs. YouTube LLC and others,
2019 SCC online Del 10454, wherein it was noted in para 5, regarding the
cancellation of allotment of land by the High Court made to respondent
No.5- Ritesh Properties and non production of any document of re-allotment
in its favor. The learned counsel for the petitioners contends that State has
filed a wrong statement, contrary to its earlier stand, as noted by the learned
1st Appellate Court in the order, impugned herein. Necessary inquiry needs
to be made.
21. I have heard learned counsel for the parties, have gone through
the paper-book, the documents appended and the impugned order in the light
of their submissions.
22. At this juncture, it is desirable to note certain undisputed facts.
It is admitted fact that State of Punjab, acquired 800 acres of land, including
the land owned by petitioner, falling in Khasra Nos No.22//14, 17/1, 24,
situated at village Mundian Khurd, Tehsil and District Ludhiana. It is also
an admitted fact that out of 800 acres of acquired land, 40 acres of land was
allotted to respondent No.5 vide letter No.US-337-U dated 22.04.1994 and
sale deeds were executed in favour of respondent No.5 and its group
companies/the applicants.
23. Learned 1st Appellate Court considered all the documents such
as allotment letters, conveyance deeds, Indenture dated 11.12.1996; and
23.11.1998 between the respondent No. 5 and Punjab government. The
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approval of revised layout plan of the suit property dated 31.05.2017.,
executed by respondents No.1 to 4, in favour of respondent No.5 and its
group companies, indicating the allotment of land in their favour as well as
execution of sale deeds and delivery of possession to them. The learned 1st
Appellate Court also noted the lodging of FIR No.452 dated 05.12.2017
against the petitioner and others under Sections 148, 447, 511, 427, 506 and
148 IPC, at Police Station Focal Point, Ludhiana, at the instance of
respondents No.5 to 9 and acknowledgment by the petitioner/plaintiff in the
plaint regarding the allotment of land including the suit land to respondent
No.5. However, she pleaded that said allotment was cancelled by the High
Court. She also referred to the passing of order by Hon’ble the Supreme
Court dated 14.02.2000, in an appeal preferred by respondent No.5. In the
written statement, respondents No.1 and 4 also pleaded about the civil suit
between her and M/s Ritesh Industries (respondent No.5). The learned 1st
Appellate Court in para No.3 of the impugned order also noted the
submissions of the learned Government Pleader about cancellation of the
allotment in favour of respondent No.5. However, at the same time, learned
1st Appellate Court noted the submissions of respondent No. 5 to 9 that the
land was re-allotted to respondent No.5, and this fact was concealed by the
petitioner/plaintiff.
24. In the present revision petition, respondent No.4 in its reply has
stated that allotment in favor of respondent No.5, was never cancelled as per
their available record and also placed an attested copy of the statement of
Ravinder Singh, Superintendent dated 02.11.2015, attested by
Superintendent (LAC), Department of Industries and Commerce, given
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before the learned Civil Judge (Junior Division), Ludhiana, stating that
allotment of land to M/s Ritesh industries was never cancelled.
25. In this factual backdrop, let the legal position with respect to the
impleadment of a person as party to the proceedings in a law suit be dilated
upon. Admittedly, respondents No.5 to 9, were not arrayed by the
petitioner/plaintiff, as party in Civil Suit No.668 dated 29.09.2007 leading to
passing of judgment and decree dated 26.07.2016 (Annexure P-1).
Respondents No.5 to 9 were impleaded in appeal vide the impugned order
dated 19.07.2018, while allowing their application (Annexure P-4).
26. At this stage, it is relevant to go through the provisions of
Section 107 CPC, Order 41 Rule 20 CPC and order 1 Rule 10 CPC:-
Section 107 CPC, reads as under:-
“107. Powers of Appellate Court.–(1) Subject to such
conditions and limitations as may be prescribed, an Appellate
Court shall have power–
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence
to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the
same powers and shall perform as nearly as may be the same
duties as are conferred and imposed by this Code on Courts of
original jurisdiction in respect of suits instituted therein.”
Order 41 Rule 20 CPC, provides as under:-
“ORDER XLI
APPEALS FROM ORIGINAL DECREES
xx xx xx xx
20. Power to adjourn hearing and direct persons appearing
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(1) Where it appears to the Court at the hearing that any person
who was a party to the suit in the Court from whose decree the
appeal is preferred, but who has not been made a party to the
appeal, is interested in the result of the appeal, the Court may
adjourn the hearing to a future day to be fixed by the Court and
direct that such person be made a respondent.
(2) No respondent shall be added under this rule, after the expiry
of the period of limitation for appeal, unless the Court, for
reasons to be recorded, allows that to be done, on such terms as
to costs as it thinks fit.”
ORDER 1 Rule 10 CPC
Parties to suits
xx xx xx xx
10. Suit in name of wrong plaintiff.– (1) Where a suit has
been instituted in the name of the wrong person as plaintiff or
where it is doubtful whether it has been instituted in the name of
the right plaintiff, the Court may at any stage of the suit, if
satisfied that the suit has been instituted through a bona fide
mistake, and that it is necessary for the determination of the real
matter in dispute so to do, order any other person to be
substituted or added as plaintiff upon such terms as the Court
thinks just.
(2) Court may strike out or add parties.–The Court may at
any stage of the proceedings, either upon or without the
application of either party, and on such terms as may appear to
the Court to be just, order that the name of any party improperly
joined, whether as plaintiff or defendant, be struck out, and that
the name of any person who ought to have been joined, whether
as plaintiff or defendant, or whose presence before the Court
may be necessary in order to enable the Court effectually and
completely to adjudicate upon and settle all the questions
involved in the suit, be added.
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(3) No person shall be added as a plaintiff suing without a next
friend or as the next friend of a plaintiff under any disability
without his consent.
(4) Where defendant added, plaint to be amended.–Where a
defendant is added, the plaint shall, unless the Court otherwise
directs, be amended in such manner as may be necessary, and
amended copies of the summons and of the plaint shall be
served on the new defendant and, if the Court thinks fit, on the
original defendant
(5) Subject to the provisions of the Indian Limitation Act, 1877
(XV of 1877), section 22, the proceedings as against any person
added as defendant shall be deemed to have begun only on the
service of the summons.”
27. The plain reading of Section 107 CPC, indicates that powers of
the Appellate Court to implead parties are circumscribed by Order 41 Rule
20 CPC, which is subject to such conditions and limitations as prescribed
therein. However, it is held in plethora of judgments that in the
circumstances, where it appears right and proper for the Court to add the
parties to the proceedings, be added as parties even at the Appellate stage.
However, before exercising the power, the Court must ensure that
circumstances are exceptional and must be such as renders it really
necessary in the interest of original parties to the suit, that some other
persons should be added, so that matter originally in the dispute may be
properly adjudicated upon and finally determined as between the original
parties. No doubt, plaintiff is a dominus litis. No one can be added as a
party to the suit against his desire. However, a person asking for
impleadment as a party, when shows he is necessary party and for effective
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and complete adjudication of the matter, his presence is required, he can be
added as a party. Furthermore, it has been held in numerous decisions that
Appellate Court has inherent power to permit parties to be added to appeal in
suitable cases and language of Rule 20 of Order 41 CPC is not exclusive and
exhaustive, so as to deprive the Appellate Court of the inherent powers in
this respect.
28. Once it is clear that Rule 20 of Order 41 CPC, is not exhaustive
of the powers of the Appellate Court for impleading or adding parties to the
appeal, certainly power under Order 1 Rule 10 CPC read with Section
107(2) CPC and under other appropriate provisions including Section 151
CPC in proper cases can be availed of, even in appeals. Order 1 Rule 10
CPC, gives the Court the power to add a party if they are necessary and
proper party to the dispute. The Court can do this to ensure that all the
questions are effectively and completely adjudicated upon and settled.
29. Reverting back to the impugned order. Learned 1st Appellate
Court, noticed all the material facts of the case, including the pleadings of
the parties, particularly of the petitioner/plaintiff, where she admits allotment
of the suit land to respondent No.5, and her claim for restoration of
possession, which was essentially from respondent No.5 and its subsidiary
companies, the presence of respondent No.5, certainly becomes necessary
for the complete and effective adjudication of the matter in controversy. It is
an undisputed fact that petitioner/plaintiff has filed the execution petition,
seeking implementation of decree (Annexure P-1) by way of restoration of
the possession of the suit land. The respondents No.5 to 9 are claiming that
execution proceedings have affected their rights of ownership and
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possession in the suit property based on allotment of land to them. The
respondents cannot in given facts be taken as third person, having no
concern with the land. It is admitted position that petitioner/plaintiff had
earlier filed a suit for permanent injunction against the defendant and
subsequent to that filed the suit for declaration challenging the award and
seeking restoration of possession of the aquired land without impleading the
respondents No.5 to 9, at the same time admitting in her pleadings about the
allotment of the suit land in favor of respondents No.5 to 9. However, the
claim of cancellation of allotment or its re-allotment, if any, in favor of
respondents No.5 to 9 and their claim of being in possession of suit land,
have material bearing, for the just and complete adjudication of the matter in
controversy. It is one of the case that falls under exceptional cases, requiring
impleadment of respondents No.5 to 9 through their parent company. There
is no gain saying that necessary party as observed in catena of authorities is
the one, in whose absence suit cannot be decided either finally or effectively
or no relief can be granted to the plaintiff.
30. As a sequel to the foregoing discussion, it is held that the
learned 1st Appellate Court has rightly exercised the jurisdiction that vested
in it and the impugned order does not suffer from any illegality, irregularity,
infirmity or perversity so as to warrant any intervention by this Court. As far
as the judgments cited by learned counsel for the petitioner Surjit Kaur
Loety, is concerned, there is no doubt on the proposition of law discussed
therein, but same are distinguishable on their facts as well as the principle of
law discussed above. Accordingly, the Revision petition No.6711 of 2018, is
dismissed. The order dated 04.10.2018 stands vacated.
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Neutral Citation No:=2024:PHHC:128332
CR No.6711 of 2018(O&M) -17-
CR No.1342 of 2024(O&M)
31. In CR No.1342 of 2024, the petitioners have challenged order
dated 01.02.2024 (Annexure P-1) passed by the learned Civil Judge (Junior
Division), Ludhiana, in execution petition No.933 of 2017 titled ‘Surjit Kaur
Vs. State of Punjab’, vide which the learned Trial Court dismissed the
application for stay of execution proceedings.
32. Learned counsel for the petitioners M/s Ritesh Properties And
Industries Limited And others, submits that continuation of execution
proceedings at the instance of respondent No.5, Surjit Kaur Loety, shall
prejudice the rights of petitioners in appeal, whereby their application for
impleadment has been allowed and rights of the parties in the suit property
are to be adjudicated upon. A prayer has been made to set aside the order
and execution proceedings be stayed.
33. Contra, learned counsel for respondent No.5 defended the order,
stating that suit for declaration, mandatory injunction and permanent
injunction filed by respondent No.5, has decreed in her favour and she is
rightfully pursuing her remedy. No valid ground is made out to allow the
petition. Furthermore, learned counsel submits that the present revision
petition is not maintainable as resolution relied upon by the petitioners lacks
authorization to file the instant petition.
34. In response, learned counsel for the petitioners contends that
issue of any defect in the resolution is a matter of irregularity and can be
rectified. Therefore, the petition should not be dismissed on this ground
alone.
35. The impugned order dated 01.02.2024 (Annexure P-1) is perused,
which indicates that issues have been framed on objections filed by
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CR No.1342 of 2024(O&M)
petitioners against the execution petition filed by respondent No.5. The
evidence of the objectors is going on. The reasons assigned by the learned
Executing Court declining to stay the proceedings are valid. At this stage,
no good ground is made out to stay the proceedings before the learned
Executing Court, merely that appeal is pending before the learned 1st
Appellate Court. The petitioners who have been arrayed as respondents, in
the appeal, may apply for stay of the decree, as per Order 41 Rule 5 CPC.
Hence, their prayer for stay of execution decree is dismissed. They are
relegated to seek remedy under Order 41 Rule 5 CPC.
36. Consequently, instant revision petition (CR No.1342 of 2024) is
also dismissed. Resultantly, the issue as to the maintainability of the petition
on the ground of lack of authority in the resolution is rendered purely
academic.
37. It is noted that observations made above should not be
construed as an expression of opinion on the merits of the case. Same are
purely confined to the present controversy and deliberations.
38. Pending miscellaneous application(s), if any, is/are disposed of
accordingly.
SEPTEMBER 26, 2024 (RITU TAGORE)
d.gulati JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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