State of Punjab vs Nirmal Singh and ors.

J.V. Gupta, J.

This revision petition is directed against the order of the executing Court dated January 20, 1987, whereby the objections regarding the executability of the decree filed on behalf of the Punjab State (the judgmentdebtor) were dismissed.

The brief facts are that the decreeholders Nirmal Singh and others filed the suit for the grant of the declaration to the effect that the order dated September 9, 1976, passed by the Chief Sales Commissioner Punjab, Jullundur, setting aside the order of the Tehsildar (Sales). Jullundur approving the transfer of lands in favour of the defendants, was illegal, null and void and without jurisdiction, and for the grant of the permanent injunction restraining the defendant from enforcing the said orders, in any way whatsoever to the prejudice of the plaintiffs. The said suit was dismissed by the trial Court on January 25, 1983. However, in appeal, the learned Additional District Judge set aside the said decree of the trial Court and passed the following decree :

"In the case in hand notification was prepared by the Rehabilitation Department on 17th June, 1976, however, the same was published on 11th of May, 1979, by itself proves that on 9.9.1976 notification had not been published in the Official Gazette under Section 3 of the Act. Therefore, the impugned order cannot he said to be passed by a duly authorised person. So, on this score alone, the impugned order dated 9.9.1976 is set aside. However, the Department will be at liberty to redecide the matter afresh in accordance with law. Consequently, the appeal is partly accepted to the extent that impugned order dated 9.9.1976 is set aside".

It may be made clear here that the plaintiffs besides the civil suit challenging the said order dated September 9, 1976, also filed the appeal against the same before the authorities as well i.e., the Commissioner. Jullundur Division and others. The Commissioner dismissed the appeal filed by the plaintiffs on April 30, 1984, whereas the decree by the Additional District Judge against the judgment and decree of the trial Court, was passed on February 13, 1985, that is, subsequent thereto. However, when the matter came up before the Financial Commissioner under Section 15(1) of the Punjab Package Deal Properties (Disposal) Act, 1976, a copy of the said judgment was not produced before him. However, a copy of the decreesheet was produced which was considered by the Financial Commissioner and ultimately, he dismissed the petition vide order dated 15.10.1985. While dealing with the judgment of the Additional District Judge dated February 13, 1985, the learned Financial Commissioner observed :

"The second submission of the petitioner''s counsel is also untenable. He has not attached the order of the Additional District Judge, Jalandhar and only a certified copy of the decree dated the 13th February, 1985, has been brought on record. The contents of the orders of the Additional District Judge are therefore not known. Since it is mentioned in the aforesaid decree that the Rehabilitation Department would be at liberty to redecide the matter afresh in accordance with law, it is implied that nothing precludes me from deciding the instant petition."

After the said order of the Financial Commissioner, the matter again came up before the Deputy CommissionercumChief Sales Commissioner, Jalandhar, by way of reference. Before him as well again, it was contended on behalf of the decree holdersplaintiffs that in view of the order of Additional District Judge, the order passed by the Financial Commissioner, dated October 15, 1982, was wrong and illegal. However, the Deputy CommissionercumChief Sales Commissioner decided the matter in the following terms :

"It has been argued before me that order of Additional District & Sessions Judge is final and the learned Financial Commissioner has erred in disagreeing with it. However, it is not for me to evaluate the order of the superior officer. As far as I am concerned, the order of the Financial Commissioner which takes into consideration the order of the Additional District Judge is final and binding. Consequently, the order of the Commissioner, Jullundur Division dated 30.4.1984 and the order of Dr. Brajendra Singh, the then Chief Sales Commissioner dated 9.9.1976 are valid as far as I am concerned. I, therefore, see no reason that the Department should move again for setting aside the sales which have already been set aside and hereby reject the reference as infructuous."

After failing before the authorities concerned, the decreeholders, sought execution of the decree dated February 13, 1985, passed by the Additional District Judge in which a direction was issued under Order XLI rule 32, Code of Civil Procedure, to the judgment debtor, i.e., the State of Punjab, to comply with the decree. Therein, objections were filed on behalf of the judgmentdebtor that in view of the subsequent orders after the passing of the decree by the Additional District Judge, the decree as such was not executable. However, in reply, it was stated on behalf of the decreeholders that no subsequent orders could be passed and the decree of the civil Court dated February 13, 1985 had become final and was thus executable. The executing Court took, the view that the impugned order dated September 9, 1976, which was set aside by the learned Additional District Judge could not be said to be a valid order and as such no action could be taken upon the same. According to the executing Court, it appears that no efforts were made by the revenue authorities to redecide the matter, in dispute.

The learned counsel for the petitioner, the judgmentdebtor, submitted that in the decree itself, the learned Additional District Judge observed that the Department was at liberty to redecide the matter afresh in accordance with law. That being so, the matter was decided by the Financial Commissioner taking into consideration the judgment of the Civil Court, vide his order dated October 15, 1985. Thus argued the learned counsel, there was nothing wrong with the said order and in any case, the decree holders never challenged the said order of the Financial Commissioner in any appropriate proceedings and the executing Court could not sit over the judgment which was passed after considering the decree of the civil Court.

On the other hand, the learned counsel for the decreeholders submitted that the order of the Financial Commissioner dated October 15, 1985, could not be said to be a fresh decision as provided in the decree of the Additional District Judge. In support of the contention, the learned counsel relied upon Swastik Oil Mills v. H.B. Munshi, AIR 1968 Supreme Court 843 and Union of India v. Bhagirath, 1985 Punjab Law Journal 251 : 1985 R.R.R. 429.

After hearing the learned counsel for the parties, I find merit in the contention raised on behalf of the petitioner. As observed in the decree itself passed by the Additional District Judge, dated February 13, 1985, it was left open for the Department to redecide the matter afresh in accordance with law. The learned Financial Commissioner has considered that aspect of the matter and then passed the order dated October 15, 1985. In case, the decreeholders were dissatisfied with the said order of the Financial Commissioner on the ground that it was not a fresh order as provided under the Civil Court decree dated February 13, 1985, they should have challenged the same in any appropriate proceedings. This was never done by them. The subsequent order of the Chief Sales Commissioner, Jullundur, dated December 11, 1986, was passed in pursuance of the earlier order of the Financial Commissioner dated October 15, 1985 and, therefore, no fault could be found with the same. In these circumstances, the view taken by the executing Court was wholly wrong and misconceived. In any case, the executing court could not sit over the judgment of the Financial Commissioner, particularly when the same was passed after considering the decree dated February 13, 1985, passed by the Additional District Judge. It is no more disputed that the said decree itself left the question open for deciding the matter afresh in accordance with law. In these circumstances, the question of violating the Civil court decree dated February 13, 1985, did not arise and therefore, there was no occasion for its execution by the decreeholders. The ruling referred to above by the learned counsel for the decreeholdersrespondents, have no applicability to the facts of the present case.

Consequently, this revision petition succeeds and is allowed. The impugned order is set aside and the objections filed on behalf of the judgmentdebtor are allowed with no order as to costs. C.M. No. 5675CII of 1987 is dismissed as it has no relevancy with the present petition. C.M. No. 4976 CII of 1987, is also liable to be dismissed because Santokh Singh, one of the decreeholders has died on October 25, 1985 whereas the executing Court decided the matter on January 20, 1987, and none of his legal representatives was brought on the record. That being so, there was nothing wrong if Santokh Singh was impleaded as party to this revision petition. However, the said deceased was duly represented in this Court by his son through the counsel. Thus, no prejudice could be said to have been caused to him in any manner.