IMPORTANT POINT
Second appeal--Maintainable against an order passed in an appeal, arising out of order passed under Rule 58(3) or Rule 98 and 100 of order 21 CPC.
Execution of decree—Objections, if any, can be raised once only and that also at the earliest— Cannot be raised subsequently.
Execution of decree—Title of owner negatived earlier could not be raised by the heir.

Vinod K.Sharma, J.- This revision petition has been filed against the order dated 31.3.2006 passed by learned Civil Judge (Senior Division), Kurukshetra in execution petition No.94 of 2002.

2. Zile Ram and others moved execution application to execute the judgment and decree in which the petitioners filed an application for dismissal of the said execution application on the plea that the decree holders had filed one Civil Suit No.1380 of 1990 seeking declaration as well as the relief of possession of land which was the subject matter of the decree which was under execution. Said suit filed by Zile Ram and others was dismissed on 7.6.1993 as the plaintiffs failed to produce any evidence.

3. It was claimed that the application moved for the restoration of the said suit was also dismissed. It was pleaded that in the said suit decree holders claimed that they had got possession of the suit land on 4.6.1981 in the execution of the decree vide Rapat Roznamcha No. 465 dated 4.6.1981 and therefore, present execution was not maintainable and thus liable to be dismissed. It was also the case set up that the objectors were not impleaded as party by the decree holders in spite of their having direct interest in the case. They claimed that their possession over the suit land was in their own right. It was further claimed that the objectors had not taken possession on the basis of mutation but in their own right. It was claimed that in the civil suit filed by the decree holders that the objectors had taken illegal possession of half land while possession of remaining half land was claimed by the decree holders. A plea of adverse possession was raised claiming that their possession for more than 12 years is adverse and hostile and they have become owners of the land which was the subjectmatter of the present application.

4. On notice reply was filed by the decree holders and it was claimed that the objections raised were bad for want of locus standi, maintainability and were barred by res judicata as well as were bad for nonjoinder of necessary parties. It was claimed that the objectors had not come to the court with clean hands and they had no independent right. It was claimed that they drew their right from Ram Kala one of the objectors who had transferred the suit land in favour of the objectors during the pendency of the execution. The claim of Ram Kala was rejected by the High Court in the revision filed by the decree holders vide order dated 22.7.2002 and even SLP filed by Ram Kala was also dismissed.

5. On merit, it was admitted that the civil suit was dismissed in default, but it was claimed that the same was restored subject to payment of costs. On 5.10.1995 Bhartu and Balwant along with their father Ram Kala were proceeded ex parte in the suit for declaration in which an application was moved for setting aside the ex parte proceedings. Said proceedings were never set aside.

6. The objectors pleaded that the matter in controversy was decided by the court of Shri S.C.Dureja. The said order was challenged in the revision petition which was allowed by the High Court. It was also the case set up that Ram Kala grand-father and father of the applicant had filed civil suit titled Rama Kala Vs. Zila vide which the judgment and decree dated 28.12.1973 was challenged. The said suit as also dismissed on 21.3.1985 and it was claimed that in view of the findings the objectors had no right to file the present application. It was also claimed that symbolic possession was delivered to the respondents and the possession of the objectors was disputed. It was claimed that the objectors had no independent right and therefore, were rightly not impleaded as party. It was claimed that they drew their title from Ram Kala. It was claimed that there was long and continuous litigation between the decree holders and Ram Kala and therefore, there was no question of adverse possession.

7. Learned Executing court was pleased to frame the following issues:-