The purpose of granting an opportunity to prove the case to an objector while entertaining objections under Section 41 read with Order 21 Rules 97 to 108 of the Code of Civil Procedure does not amount to permission for abusing the process of law or court.

Hemant Gupta, J.

1. The revision petitioner is the objector who is none else but son of the judgment debtor. This revision petition is against the order whereby his objections to the execution of the decree for specific performance of the agreement passed against hi father were dismissed.

2. The petitioner has filed objections to the effect that the disputed house is a joint Hindu family and coparcenary property and he along with his family members is residing in the said house for the last more than 15 years. He was never made a party to the suit, the decree of which is being executed by the decree holder. It was the case of the objector that he has legal right to remain in possession of the disputed house.

3. Learned Executing Court dismissed the objections relying upon the certificate issued by the Sarpanch Gram Panchayat on the ground that the petitioner along with his family members is a resident of House No. 1999. Gali No. 3, Bachittar Nagar Colony, Gill Road, Ludhiana for the last 15-16 years. The Court also relied upon a certificate issued by the Gram Panchayat Kokri Kalan where the disputed premises is situated, that the petitioner is not residing in the said village for the last 20 years. The application for obtaining ration card filed by the petitioner was also produced wherein he has been shown to be resident of Ludhiana. Thus, the Executing Court dismissed the objection petition.

4. Before this Court, the petitioner has submitted that the objections filed by the petitioner should not have been dismissed in summary manner without giving an opportunity to the petitioner to produce evidence in support of the averments made in the objection petition. He has relied upon a judgment of this Court in Baljit Singh v. Balkar Singh and Ors., (2001-2)128 P.L.R. 315 and a judgment of Supreme Court in N.S.S. Narayana Sarma and Ors. v. Goldstone Exports (P) Ltd and Ors., (2002-3)132 P.L.R. 552.

5. The primary objection, of the petitioner is that the suit property is a joint Hindu family and coparcenary property and thus, the decree cannot be executed against the petitioner. Decree is of specie performance of the agreement executed by his father. In pursuance of such decree, the sale deed has no been executed so far. The petitioner has no right to intervene in the process of sale at this stage. The coparcenary shall have right to challenge the alienation only after the sale is complete and that would be on execution of the said deed. It has been so held by the Honble Supreme Court in Sunil Kumar v. Ram Parkash, A.I.R, 1988 S.C. 576, that a suit for injunction restraining the Karta of the Joint Hindu Family from joining Hindu property is not maintainable. It was held as the follows effect:-

"The provisions of Section 38 have to be read along with Section 41. Section 41 provides that an injunction cannot be granted in the cases falling under Clauses (a) to (j). Clause (h) thereunder provides that an injunction cannot be granted wheh a party could obtain an efficacious relief by any other usual mode of proceeding (except in case of breach of trust). The coparcener has adequate remedy to impeach the alienation made by the karta. He cannot, therefore, move the Court for an (injunction restraining the karta from alienating the coparcenary property."

6. The fact that the sale is being executed in pursuance of the decree will not make any difference to the principle laid down by the Honble Supreme Court in the aforesaid judgment

7. Other objection is that the petitioner is residing in the suit property. The said objection is either based upon the fact that the residential building cannot be sop in execution of a decree in terms of the provisions of Section 60(1)(ccc) of the Code of Civil Procedure as applicable to Punjab and Haryana or that the petitioner is in possession as co-parcener. The first objection is not tenable even if the averments made in the application are accepted to be correct. What is exempted under Section 60(1