Objections of a legal nature, raised merely to delay the execution proceedings, do not require framing of issues or production of evidence.

Dharam Chand Chaudhary, J. (oral).

Challenge herein is to an order passed by learned Civil Judge (Junior Division), Court No.1, Hamirpur in Execution Petition No. 157 of 2009 whereby while dismissing the objections filed by the petitioners (hereinafter referred to as the judgment debtors), warrant of possession has been ordered to be issued.

2. The judgment debtors admittedly suffer decree passed by learned Sub Judge 1st Class (1) Hamirpur in Civil Suit No. RBT 293 of 1994 on 30.9.2002, modified further by learned District Judge, Hamirpur vide judgment and decree dated 1.1.2005 holding thereby the respondent-plaintiff entitled for possession of land measuring two kanals bearing Khasra No.548/4 and restraining the judgment debtors by way of the decree of permanent prohibitory injunction from causing any sort of interference in the suit land bearing Khasra No.548 (except Khasra No.548/2 and 548/3). RSA No.154/05 preferred by the decree holder-plaintiff, however, was dismissed by this Court vide judgment dated 16.5.2005. The judgment and decree sought to be executed by initiating execution proceedings in the trial Court has thus attained finality. Hence the petition under Order 21 Rule 11 CPC, registered as CMA No.157 of 2009 preferred by the plaintiff-decree holders in the trial Court.

3. The judgment debtors in reply/objections preferred thereto have submitted that the decree passed by learned District Judge having been merged into the judgment and decree passed by this Court in appeal, the Executing Court could have only executed the judgment and decree dated 30.9.2002 (wrongly typed as 2009) passed in the main suit (Civil Suit No.RBT 293 of 1994). Also that the decree cannot be executed for want of proper identification of the land and also that in view of the valuation of the structure Rs.5,00,000/-, the decree passed by learned trial Court without jurisdiction is nullity. Also that the petitioner-DH impleaded as legal representative of original plaintiff Gitan Devi pursuant to a Will dated 27.1.2010, which is under challenge in Civil Suit No.6 of 2010 titled Prem Sagar versus Biasan Devi, pending disposal before Civil Judge (Junior Division), Court No.2, Hamirpur, is not legally entitled to seek the execution of the decree. Also that Gitan Devi, the original plaintiff, had two sons, who are necessary parties and the present petitioner is not entitled to pursue the execution petition.

4. Learned trial Judge as noticed supra, has however, dismissed the objection so raised and ordered to issue the warrant of possession. The legality and validity of the impugned order though has been assailed on several grounds, however, mainly that the dismissal of the objections raised by the judgment debtors without framing proper issues, is not legally sustainable. The status of the respondent-DH as legal heir of the original plaintiff Gitan Devi has also been disputed. It is further submitted that the Will, on the basis of which she claims to be the legal heir of deceased plaintiff Gitan Devi, is under challenge in the suit filed by Shri Prem Sagar son of the deceased plaintiff, therefore, unless and until the suit is decided, the respondent-DH is not entitled to seek the execution of the decree.

5. Shri G.D. Verma, learned Senior Advocate assisted by Mr. B.C. Verma, Advocate, during the course of arguments, has urged that without framing issues with respect to the objections raised by the judgment debtors, the objections so raised could have not been dismissed.

6. On the other hand, Shri Bhupender Gupta, learned Senior Advocate assisted by Ms. Charu Gupta, Advocate representing the respondent-DH has vehemently contended that in view of the nature of the objections raised no issue either arises or required to be framed and as such the Court below has not committed any illegality and irregularity while dismissing the objections and issuing warrant of possession of the land in question.

7. As per Section 47 of the Code of Civil Procedure, a