Narinder Singh vs Sewa Singh and Others

Alok Singh, J.—Present petition is filed challenging the order dated 31.08.2010 passed by the learned Executing Court/Civil Judge (Junior Division), Nakodar, whereby the learned Executing Court dismissed the objections filed by the judgment-debtor and directed to issue warrant of possession in execution of the decree dated 31.10.1991.

The brief facts of the present case are that Kartar Kaur and Surjan Singh filed Civil Suit No. 97 of 1989 against Narinder Singh, defendant/judgment debtor/petitioner. Suit for possession was decreed against Narinder Singh vide judgment and decree dated 31.10.1991. Param Partap Singh claiming himself to be a purchaser from some of the legal representatives of the decree holder through the power of attorney got himself impleaded as one of the decree holders in the execution petition. Before the learned Executing Court, judgment-debtor/petitioner has taken objections that after the death of the original decree - holder, legal representatives have made statement before the Executing Court that they do not wish to proceed with the execution. Further, contention of the judgment debtor before the Executing Court is that since decree holder has himself withdrawn the execution earlier, hence, decree cannot be executed on behalf of the purchaser. It has further been contended before the Executing Court that power of attorney in favour of the father of the Param Partap Singh was cancelled prior to the sale deed, hence, sale deed in favour of Param Partap Singh is void. The Executing Court did not agree with the contention raised by the judgment debtor - petitioner herein and passed the impugned order.

Mr. Kanwaljit Singh, Senior counsel, appearing on behalf of the petitioner, assisted by Ms. Harpreet Kaur, Advocate, vehemently argued that since sale deed in favour of Param Partap Singh was executed by his father being power of attorney holder of legal representatives of the decree holder and power of attorney was canceled/revoked prior to the sale deed, hence, sale deed in favour of Param Partap Singh is void. It has further been argued that a suit for declaration challenging the sale deed in favour of Param Partap Singh has already been filed. He further states that Param Partap Singh on the basis of the void sale deed is not entitled to obtain possession. His next argument is that since LRs of decree holder had made statement before the Executing Court that they do not want to press the execution it would amount to abandonment of their rights in favour of judgment debtor, hence, purchaser from the judgment debtor cannot proceed with the execution. He further states that actual physical possession has not been taken only symbolic possession is taken.

Mr. Ramesh Sharma, learned Counsel, appearing on behalf of Respondent No. 4-caveator, states that possession has already been taken from the judgment debtor on 27.09.2010. He, however, admits that suit has already been filed challenging the sale deed in his favour.

I do not find any material on the record to justify that LRs of decree holder ever abandoned their rights in favour of the judgment debtor. From the statement of LRs of decree holder that they do not want to proceed with the execution, no inference can be drawn that LRs of decree holder have abandoned their rights in favour of judgment debtor. Abandonment must be specific.

Undisputedly, question as to whether any valid sale deed was ever executed in favour of Param Partap Singh is already subjudice before the Competent Court. In view of the statement of learned Counsel for Param Partap Singh that possession has already been taken pursuant to the decree, I do not find any reason to interfere with the impugned order. Petitioner herein can seek his impleadment in the suit pending challenging the sale deed in favour of Param Partap Singh.

Petition is dismissed. However, it is made clear that delivery of possession in favour of Param Partap Singh shall be subject to the final outcome of the suit challenging the sale deed of Param Partap Singh.