Executing Court Dutybound To Decide Objections Of Third Parties Even If They Are Not Part of The Original Suit: Jammu & Kashmir And Ladakh High Court

The Jammu & Kashmir and Ladakh High Court has held that Executing Court cannot refuse to decide merits of objections raised by third parties merely on the ground that they were not part of the original suit.

The Court was considering a Revision Petition against an order passed by the Executing Court whereby objections filed by them to the Execution Petition filed by Respondent was dismissed.

The bench of Justice Sanjay Dhar observed, "The learned trial Court while passing the impugned order has declined to go into the aforesaid questions on the ground that the Executing Court cannot go behind the decree and that it was for the petitioners/ judgment debtors to get their rights determined through appropriate forum. The course adopted by the learned trial Court is not in accordance with law because Section 47 of the CPC clearly bars filing of a separate suit in relation to questions arising between the parties to the suit or their representatives pertaining to execution, discharge or satisfaction of the decree. Merely because the petitioners (judgment debtors) have failed to get the judgment/decree dated 30.04.1993 set aside, rightly so because the said decree was not ex-parte in nature, the petitioners/ judgment debtors who were not party to the suit are well within their rights to agitate their claim relating to the suit property not in their capacity as legal representatives of Mst. Janu but in their independent capacity and their said claim was required to be determined by the learned Executing Court. Having abdicated its duty to determine the said question, the learned Executing Court has failed to exercise the jurisdiction vested with it."

The Petitioner was represented by Senior Advocate P.N Goja while the Respondent was represented by Senior Advocate Rohit Kohli.

Facts of the Case

A Civil Suit seeking permanent prohibitory injunction was filed by Respondents (decree holders) against mother of the Petitioners (judgment debtors) and the predecessor-in-interest of Respondent No. 3. The said suit decreed in their favour and they were held entitled to decree of permanent prohibitory injunction restraining the Defendants from encroaching upon the Suit Land. The Petitioners (judgment debtors) happen to be the sons of Defendant No. 1 in the suit from her first husband whereas, Defendant No. 2 in the Suit happened to be her second husband and Respondent No. 3 herein happens to be son of the said Defendant.

After passing of the impugned decree, the mother of Petitioners (judgment debtors) passed away and they filed an Application seeking setting aside of it on the grounds that the summons of the Suit were never served upon the Defendants and that the Counsel who had appeared on their behalf before the Trial Court had forged the signatures of the Defendants.

The Petitioners (judgment debtors) filed objections to the Execution Petition in which they took a stand their Uncle was a protected tenant of the Suit Land which is recorded in the revenue record right from the year, 1971, Rabi and the record of rights for the year, 1969-70. It was further pleaded that the uncle of the judgment debtors had died in the year, 1973 leaving behind the Petitioner as the only male lineal descendants as such, right of succession as protected tenants in favour of Petitioners opened on death of their uncle in terms of Section 67, 68 & 68-A of the J&K Tenancy Act. Therefore, they claimed that they have acquired title of protected tenants in respect of the Suit Land. It was further pleaded that the Decree Holders/ Plaintiffs deliberately did not make the Petitioners (Judgment Debtor) as Parties to the Suit and that the Plaintiffs/ Decree holders have manipulated an entry in the revenue record relating to the land in question. It was contended that the land in question is in possession of the Petitioners (Judgment Debtors) continuously for the last several years in their own right and not as legal heirs.

The Trial Court rejected the objections of the Petitioners/ Judgment Debtors primarily on the ground that the Executing Court cannot go beyond the decree.

The Petitioners/ Judgment Debtors challenged the impugned order passed by the Executing Court on the grounds that it was bounden duty of the Executing Court to determine the merits of the claim raised by them as they were claiming their right to the suit property not in the capacity of legal heirs of judgment debtor but they were doing so in their independent capacity.

Reasoning By Court

The Court at the outset observed that Supreme Court has in its various precedents after interpreting the provisions contained in Sections, 47, 50 and Order 21 of the CPC, laid down the legal position as regards the powers and obligations of an executing Court, while dealing with objections to the execution of decree that may be raised by legal representatives of the judgment debtor or by any third party.

It thus referred to Bhanwar Lal Vs. Satyanarain and anr.; (1995), Prabhakara Adiga Vs. Gowri and ors; 2017 and the recent ruling in Jini Dhanrajgir and anr. Vs. Shibu Mathew and anr.; (2023)  and held, "From the above analysis of legal position, it is clear that the Executing Court is bound to adjudicate upon the claim of an objector and record a finding allowing or rejecting the said claim even if the objector was neither a party to the earlier proceedings nor the decree was passed against him. However, it has to be noted that the Executing Court has to decide only those questions which are relating to the execution/discharge or satisfaction of the decree and it is also a settled legal position that a decree of permanent prohibitory injunction against a judgment debtor can be executed against his legal heirs upon the death of the judgment debtor."

The Petition was accordingly allowed.

Cause Title: Ghulam Haider and anr. v. Kamlesh Singh and ors.

Appearances:

Petitioners- Senior Advocate P.N Goja, Advocate Abhinav Jamwal

Respondents- Senior Advocate Rohit Kohli, AdvocateRaghav Gaind

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