Shri Surinder Kumar Arora vs Shri Bhola Nath

Indermeet Kaur, J.

C.M. No. 12996/2010 (for exemption)

Allowed subject to just exception.

R.S.A. No. 144/2010 & C.M. No. 12995/2010

The Trial Court on 30.9.2009 had decreed the suit of the plaintiff. This was a suit which had been filed by the father Bhola Nath against his son Surinder Kumar seeking a decree of possession and permanent injunction. The suit property was property bearing No. 100, Patel Gali Nos. 1 & 2, near Laxmi Cinema, Gandhi Nagar, Delhi. The Trial Judge had framed eight issues. Issue No. 6 was relevant which inter alia reads as follows:

Whether the plaintiff is entitled to the relief of possession, as claimed for? OPP

The onus to discharge this issue was upon the plaintiff. Testimony of PW-1 Bhola Nath had been considered. Defendant had examined three witnesses. The contention of the defendant that this was a HUF property had been repelled. Ex.DW-4/5 to Ex.DW-4/7 were documents written by the defendant to the Sales Tax Department wherein he had admitted that the plaintiff is the owner of the suit property. Trial Judge had relied upon the provisions of Section 58 of the Evidence Act to draw a finding that facts admitted are not required to be proved. Suit of the plaintiff was decreed in his favour.

The First Appellate Court vide judgment and decree dated 17.5.2010 had confirmed the order of the Trial Judge.

Substantial questions of law have been formulated on page 2 in the body of the appeal. Contention of the learned Counsel for the appellant is that the decree passed by the Trial Judge and confirmed by the First Appellate Court is an inexecutable decree in as much as, as it is admitted between the parties that the plaintiff�s father has on 22.12.2006 gifted the suit property to his daughter Smt. Renu. In this view of the matter, the decree having been passed in favour the decree holder who is the plaintiff Bhola Nath, the new owner now being Smt. Renu cannot execute this decree. It is further submitted that PW-1 in his cross-examination has stated-

It is correct that Defendant is in possession and occupation of the MIANI and a room on the first floor.

This admission of PW-1, again makes the decree inexecutable as the decree for possession has been passed qua the ground floor. It is submitted that these are substantial questions of law.

Learned Counsel for the respondent has negatived these submissions.

In (2001) 6 SCC Dhurandhar Prasad Singh v. Jai Prakash University and Ors., the Apex Court had examined the powers of the Court u/s 47 of the Code of Civil Procedure. It was held that the objections u/s 47 of the Code to the executability of the decree are maintainable, if it is found that the same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing.

This Court is sitting in second appeal; it cannot re-appreciate facts. It is only substantial questions of law which can be gone into by this Court. Contentions raised before this Court as to whether the decree is executable or not, if legally tenable are all matters which can be dealt with by the Executing Court. These contentions propounded before this Court do not raise any substantial question of law. Both the Courts below had given concurrent findings that the plaintiff/father being the owner of the suit property could maintain the suit for possession against his defendant/son who was only a licensee in the suit property and after having revoked his licence he was entitled to the possession of the suit property. There is no merit in this appeal. The appeal as also the pending application are dismissed in limine.