Warrant of Possession--Objections--Petitioner does not claim to be in actual possession of land--Cannot file an objection petition by invoking the provisions of Order 21 Rule 97 CPC onwards.

Mrs. Rekha Mittal, J.:- This order will dispose of CR No.6480 and 6525 of 2016 as identical questions of law and fact are involved for adjudication. For the sake of convenience, facts are taken from CR No.6480 of 2016.

2. Counsel for the petitioner has submitted that Dalbir Singh and others filed a suit for declaration with consequential relief of permanent injunction claiming them to be owner in possession of suit property and the suit was filed against Gurbachan Kaur and Gurvinder Kaur (minor). In the said suit, Gurbachan Kaur and Gurvinder Kaur filed a counter-claim for possession of suit land. The suit filed by Dalbir Singh and others and counter-claim preferred by Gurbachan Kaur and another were ordered to be dismissed by the trial Court vide judgment and decree dated 15.06.2009.

3. Gurbachan Kaur and Gurvinder Kaur preferred an appeal against the aforesaid judgment and decree and the Court of Additional District Judge, Fast-track Court, Karnal allowed the appeal in respect of counter-claim preferred by Gurbachan Kaur and Gurvinder Kaur vide judgment and decree dated 20.01.2012 (Annexure P6). On the basis of the decree passed by the Court of appeal, an application for execution of the decree was filed by the assignees of the decree-holders. In the execution proceedings, two separate applications were filed by the petitioner one under Order 21 Rule 35 CPC and another for recalling of warrants of possession to be executed with police help. The Executing Court vide impugned order dated 14.09.2016 dismissed both the applications and warrants of possession were ordered to be issued for 28.09.2016.

4. Counsel for the petitioner has submitted that Kulwinder Kaur and others filed a civil suit against Surinder Tawar and others for declaration that the plaintiffs are owners of 2445/4080 share out of land measuring 204 kanals 4 marlas detailed in para 4 of the plaint and mutation No.990 and 991 are illegal, void, without jurisdiction and nullity. The suit was decreed by the trial Court vide judgment and decree dated 26.04.2016 (Annexure P2). The appeal against the decree is pending. It is argued that as the petitioner is a co-sharer in the land measuring 204 kanals 4 marlas on the basis of judgment and decree dated 26.04.2016, the Executing Court should refrain from getting the actual physical possession delivered in favour of the decree-holders or their assignees on the basis of judgment and decree dated 20.01.2012. It is further argued that the petitioner has got no objection if the Executing Court executes the warrants of possession only qua delivery of symbolic possession because symbolic possession is as effective as actual physical possession. In support of his contentions, he has referred to judgments of this Court “Ram Singh vs Gurnam Singh and others”, 1989(2) PLR 185, “Tara Singh and another vs Gurdial Singh and another”, 1959 AIR (Punjab) 518.

5. Another submission made by counsel is that an application filed under Order 21 Rule 35(3) CPC can be treated as an application filed under Order 21 Rule 97(1) CPC. For this purpose, he has referred to judgment of Hon’ble the Supreme Court of India “Bhanwar Lal vs Satyanarain”, 1995(1) SCC 6. Counsel has also referred to other judgments “Mallu vs Ram Chand and others”, 1973 PLJ 655 (P&H), “Milkhi Ram and others vs Raghunandan and others”, 1982 AIR (HP) 87, “M.V.S. Manikayala Rao vs M. Narasimhaswami and others”, 1966 AIR (SC) 470.

6. I have heard counsel for the petitioner and perused the paperbook particularly the records.

7. Before adverting to the submissions made by counsel for the petitioner, it is pertinent to mention that an application filed under Order 21 Rule 35 CPC at the behest of the petitioner and challenge to the order passed by the Executing Court on the said application are highly mis-conceived and appears to be the result of gross mis- appreciation of the provisions of Order 21 Rule 35 CPC.

8. Order 21 Rule 35 CPC deals with decree for immovable property.