Rajeshwar vs Lachhi Ram and Others

L.N. Mittal, J.—Objector Rajeshwar has filed this revision petition u/s 115 of the CPC impugning order dated 23.5.1994 (Annexure P-6) passed by the executing Court. Respondent No. 1 Lachhi Ram as plaintiff filed civil suit No. 312 of 1986 against respondents No. 2 and 3 Rameshwar and Rakesh Kumar as defendants for possession of 29 Kanal 10 Marlas land being 1/2 share of 59 Kanals land described in the plaint.

Trial Court vide judgment dated 13.1.1989 (Annexure P-3) dismissed the said suit. However, first appeal preferred by the plaintiff against judgment (Annexure P-3) was allowed partly by the lower Appellate Court vide judgment dated 7.8.1989 (Annexure P-4) and the suit was dismissed regarding 16 Kanals land of Rectangle No. 38, Killa Nos. 8/2 (4-0), 9 (8-0) and 10/2 (4-0) and the suit was decreed for possession of 13 Kanals 10 Marlas land out of the total land measuring 59 Kanals excluding aforesaid 16 Kanals land.

Respondent No. 1 filed execution petition for executing the aforesaid decree of the lower Appellate Court. Rajeshwar petitioner, who was not party to the said suit, filed objections (Annexure P-5) alleging that he is in possession of 11 Kanals land comprised of rectangle No. 37, Killa Nos. 15/2 (1-13), 16/1 (5-7) and 17/1 (4-0) and the decree cannot be executed against him qua the said land because he was not party to the suit in which the decree was passed.

Decree holder resisted the objections filed by the petitioner. Averments made in the objections were controverted.

Learned executing Court vide order (Annexure P-6) dismissed the objections (Annexure P-5) preferred by the petitioner who has, therefore, filed this revision petition to challenge the said order.

I have heard counsel for the parties and perused the case file.

Respondent No. 1-plaintiff had also filed a separate suit No. 400 of 1988 against petitioner Rajeshwar and one Vinod as defendants for possession of aforesaid 11 Kanals land which is now claimed by the petitioner. Said suit was dismissed by the trial Court vide judgment dated 2.5.1989 (Annexure P-1). The said judgment was upheld in first appeal by the lower Appellate Court vide judgment dated 11.10.1989 (Annexure P-2). Thus, claim of respondent No. 1 Lachhi Ram regarding said 11 Kanals land which is in possession of petitioner Rajeshwar has already been negatived vide judgments (Annexures P-1 and P-2). Consequently, in execution of decree passed by the lower Appellate Court in another suit vide judgment Annexure P-4, respondent No. 1 cannot take possession of the aforesaid 11 Kanals land from the petitioner who was not party to the suit giving rise to first appeal in which judgment (Annexure P-4) was passed. Even counsel for respondent No. 1 could not advance any meaningful argument to controvert this position. Resultantly, the instant revision petition is allowed. Impugned order (Annexure P-6) passed by the executing Court is set aside. Objections (Annexure P-5) filed by the petitioner are allowed and it is held that in execution of decree dated 7.8.1989 as per judgment (Annexure P-4), respondent No. 1 cannot take possession of aforesaid 11 Kanals land comprised of rectangle No. 37, Killa Nos. 15/2 (1-13), 16/1 (5-7) and 17/1 (4-0). However, respondent No. 1 shall be at liberty to take possession of 13 Kanal 10 Marlas land out of the suit land measuring 59 Kanals excluding the aforesaid 11 Kanals land as well as 16 Kanals land mentioned in judgment (Annexure P-4).