Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(SC) 967

SUPREME COURT OF INDIA
J.B. PARDIWALA, SANJAY KAROL, JJ.
Joginder Singh (Dead) through LRs. – Appellant
Versus
Dr. Virinderjit Singh Gill (Dead) through LRs. and Others – Respondents
Civil Appeal Nos. 12059-12061 of 2024 (Arising Out of Special Leave Petition Nos. 9202-9204 of 2016)
Decided On : 17-10-2024

Advocates appeared:
For the Petitioner(s): Mr. Anunnay Mehta, Adv. Mr. Alim Anvar, Adv. Mr. Nishe Rajen Shonker, AOR Mr. Vinayak, Adv.
For the Respondent(s): Mr. A.P. Mohanty, Adv. Mr. Aftab Ali Khan, AOR Mr. Anunaya Mehta, Adv. Ms. Arunima Dwivedi, AOR

The executing court must determine questions arising between parties to the decree without modifying it, and procedural irregularities should not defeat substantive rights.

Headnote:(A) Civil Procedure Code, 1908 - Sections 47, 58, and 97 - Execution proceedings - Objections raised by the objector regarding ownership and possession of property in execution of a decree - The court emphasized that the executing court cannot modify the decree and must determine questions arising between parties to the decree - The objector, being a co-sharer, possesses locus standi to file objections - The High Court's dismissal of the revision petition was found to compromise the substantive rights of the objector. (Paras 11, 12, 20, 21)

Facts of the case:
The dispute arose from execution proceedings related to a partition suit where the objector claimed ownership of a portion of land based on a prior decree. The objector contended that he was not properly served in the earlier proceedings and that the decree holders misled the court regarding his ownership. (Paras 3.1, 3.4)

Findings of Court:
The court found that the objections raised by the objector were maintainable and warranted reconsideration of the decree, emphasizing the need for a clear determination of shares among parties. (Paras 20, 21)

Issues: The main issues included the maintainability of the objections filed by the objector and whether the executing court could modify the decree. (Paras 10, 12)

Ratio Decidendi: The court ruled that procedural irregularities should not defeat substantive rights and that the executing court must adhere to the decree as it stands without modification. (Paras 12.1, 12.2)

Result: Appeals allowed and remanded for fresh consideration. (Para 22)

JUDGMENT

SANJAY KAROL J.

1. Leave to Appeal is granted.

2. Questioned in these appeals are three judgements of the High Court of Punjab and Haryana passed in CR No. 4418 of 2012 (O&M) dated 6th May 2015 and 16th September 2015 along with RA-CR No. 265-CII of 2015 in CR No. 4418 of 2012, dated 20th November 2015. The orders in civil revision (dated 6th May and 16th September 2015) were interim and final, respectively, dismissing such a revision against order and judgment dated 17th January 2012 of the Additional District Judge, Moga, which allowed the appeal against the order and judgment dated 17th January 2009 of the Civil Judge, Junior Division who had allowed the objections taken by the Appellants herein in the execution petition filed to enforce the final decree in Civil Suit No. 266 of 1987.

BACKGROUND OF THE INSTANT DISPUTE

3. Although the bone of contention before this court relates to execution proceedings and the objections taken therein, the factual milieu in which the controversy has come to stand, as it does today, is important for the purpose of disposal of these appeals.

3.1 Civil Suit No. 66 of 1979¹ [First Partition Suit] was filed by Mukand Singh (father of the Appellant, now represented by LRs) and Chanan Singh against a total of thirty- three persons, including Dr. Thakar Singh (father of the Respondent 1 & 2) and LRs of Nand Singh, seeking declaration and separate possession of a half share of the land in Khasra No. 6363, Khatauni No. 7257 and Khasra No. 2259 (measuring 2 Kanals - 18 Marlas). Out of the thirty-three defendants only two, namely, Dr. Thakar Singh and one Karamjit Singh were represented, while others remained ex-parte. The suit was decreed and the plaintiffs were declared owners and possessors of half share of the above property. An appeal was filed there-against, but the same came to be dismissed vide order and judgment dated 18th October 1982. In pursuance thereof, a warrant of possession in favour of Mukand Singh was issued on 21st September 1985.

The dispute before this court pertains only to Khasra No. 2259 (2 Kanals - 18 Marlas), which is part of Schedule ‘D’ properties described in the plaint.

3.2 Subsequently in 1987, Dr Thakar filed Civil Suit No. 266² [Second Partition Suit] against the LRs Nand Singh and approximately seventy other defendants, for his individual one-fourth share of 58 marlas (Khasra No. 2259). It is to be noted that plaintiffs in the first partition suit were defendants in this second partition suit, which included Mukand Singh, the father of Joginder Singh (now represented through LRs). The Additional Senior Sub-Judge, First Class, Moga, framed the following issues:

2. Whether suit is not maintainable? OPD

3. Whether suit is not properly valued for court fees and jurisdiction? OPD

4. Whether suit is bad for mis-joinder of parties? OPD

5. Whether plaintiff is entitled to the decree of possession as prayed for? OPP

6. Relief.

For Issues 1 and 5, the learned civil court held that “the plaintiff is owner in possession as co-sharer to the extent of share as mentioned and detailed in Schedule ABCD in the head-note and as such he is entitled to the decree in possession by way of partition. Accordingly, I decide both these issues in favour of the plaintiff and against the defendants.” Similarly, Issues 2, 3 and 4 were also decided in favour of the plaintiff, and the suit was accordingly decreed with costs. In a subsequent application, the learned civil court appointed a local commissioner. The first report came on 15th December 1996, and an additional report was submitted on 25th October 1997.

3.3 On 4th February, 1998, a final decree was drawn up in the above suit with only one respondent, namely, Karamjit Singh being represented and others ex-parte. In respect of the contested portion, the final decree records “.....Properties shown in head-note ‘D’ of the plaint be