Lekh Raj (D) Th. Lrs vs Ranjit Singh .

Lekh Raj(Dead) Through L.Rs. & Ors. ….Appellant(s)

VERSUS

Ranjit Singh & Ors. …Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1) This appeal is filed by the judgment-debtors

(defendants) against the final judgment and order

dated 04.08.2006 passed by the High Court of

Punjab and Haryana at Chandigarh in C.R. No.

3823 of 2005 whereby the High Court dismissed the

civil revision filed by the appellants herein against

Signature Not Verified the order dated 16.07.2005 of the Additional Digitally signed by ANITA MALHOTRA Date: 2017.08.19 12:48:24 IST Reason: 1 District Judge, Jagadhri which upheld the order of

the executing Court dated 12.05.2005.

2) We herein set out the facts, in brief, to

appreciate the issue involved in this appeal.

3) The proceedings, which are traveled to this

Court in appeal, arise out of the execution initiated

by the respondents(plaintiffs/decree-holders)

against the

appellants(defendants/judgment-debtors) in relation

to suit land (agriculture) bearing Kill Nos. 1/19,

1/22, 1/23, 1/24 and 2 measuring 119 Kanals 7

Marlas situated in village Isharpur, Tahsil

Jagadhari, District Yamuna Nagar on the basis of

the judgment and decree dated 14.05.1965 passed

by Additional District Judge (II), Ambala in Appeal

No. 185 of 17.02.1964 which arose out of Civil Suit

No. 461/1962 decided on 27.11.1963 in

respondents’ favour.

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4) The respondents filed a civil suit against the

appellants’ predecessor-Lekhraj seeking a

declaration and other consequential reliefs in

relation to the aforementioned suit land. The suit

was filed by the plaintiffs asserting inter alia their

customary rights which were, at the relevant time,

recognized in law in the suit land for claiming reliefs

against the defendants.

5) Though the suit came to be dismissed by the

Trial Court, it was decreed in an appeal filed by the

plaintiffs by the Additional District Judge(II) Ambala

vide appellate judgment/decree dated 14.05.1965

as detailed above. This appellate decree became

final because the defendants did not further

challenge the decree in second appeal.

6) The operative portion of the appellate

judgment/decree, which resulted in decreeing the

plaintiffs’ suit, reads as under:

“6………….. In view of my finding above, I, therefore, hereby setting aside the

3 judgment and decree of the trial court accept the appeal and grant the plaintiffs a declaration that the sale of the land in dispute by defendant No.2 in favour of defendant No.1 shall not effect the rights of inheritance after the death of their father Kanshi Ram and that they shall be entitled to its possession on his death on payment of Rs.2000/- to defendant No.1. In case they do not want to avail of the decree as is granted to them for declaration, they shall be entitled to possession of the land in dispute on payment of Rs.5000/- to defendant No.1 which shall be deposited by them on or before 14/6/65. The parties shall bear their own costs throughout.”

7) It is this decree, which was put in execution by

the decree holders (respondents herein) against the

appellants (judgment-debtors) in the Executing

Court. The appellants, on being noticed, entered

appearance and raised several objections to the

execution of the decree.

8) According to the appellants, first, the

execution application filed by the respondents was

barred by time; second, the father of the decree

holders having purchased another property in

exercise of his right of pre-emption through sale

4 deed, the decree in question had become

unexecutable; third, no notice of the proceedings

was served on the appellants and hence execution

application was not maintainable; fourth, the decree

holders having failed to deposit the money in terms

of the decree, they had lost their right to file the

execution application; fifth, since in the meantime,

the judgment-debtors made investment in the suit

land and made it cultivable by planting the

trees/crops and also installed the tube-well, the

decree became unexecutable against them; sixth,

the suit land being in joint ownership of several

parties so long as it was not partitioned amongst all

the co-owners, the decree holders had no right to

claim any right in the suit land. These were

essentially the objections taken by the

judgment-debtors in their reply to oppose the

execution of the decree in question.

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9) The Executing Court, by order dated

12.05.2005, overruled all the objections holding

them to be wholly frivolous and devoid of any merit.

In consequence, the executing Court allowed the

execution application to give effect to the terms of

the decree.

10) The judgment-debtors, felt aggrieved, filed

appeal before the Additional District Judge. The

appellate Court by order dated 16.07.2005

dismissed the appeal and affirmed the order of the

Executing Court. The judgment-debtors, felt

aggrieved, filed revision before the High Court. By

impugned order, the High Court dismissed the

revision and affirmed the orders of the Executing

and Appellate Court, which has given rise to filing of

this appeal by the judgment-debtors.

11) Heard Mr. Ajay Pal, learned counsel for the

appellants and Mr. Neeraj Kumar Jain, learned

senior counsel for the respondents.

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12) Learned counsel for the appellants (judgment-

debtors) while attacking the legality and correctness

of the impugned order raised only one point. In

other words, all the objections on which the decree

in question was challenged before the Executing

Court, first appellate Court and lastly before the

High Court were given up and the challenge was

confined only on one legal point.

13) According to learned Counsel, the decree in

question was rendered nullity in the light of the

amendment made in 1973 in the Punjab Custom

(power to Contest) Act, 1920 (hereinafter referred to

as “the Act”). It was urged that the rights of the

plaintiffs (decree holders) on which their suit was

based were, at the relevant time, governed by the

provisions of the Act but the amendment made in

1973 took away those customary rights. It was

urged that the amendment was held retrospective in

its operation by this Court in two decisions in

7 Darshan Singh Vs Ram Pal Singh & Anr., (1992)

Supp (1) SCC 191 and Kesar Singh and others vs.

Sadhu (1996) 7 SCC 711 and hence the very basis

of filing the suit stood withdrawn by reason of

amendment. It was, therefore, urged that it is for

this reason, the decree in question had become

nullity. It was urged that since the objection, apart

from being legal, goes to the root of the case, hence,

it is permissible to raise such objection in execution

proceedings.

14) In our considered opinion, the submission is

wholly misconceived and deserves rejection on more

than one ground detailed infra.

15) First, this objection was neither raised before

the Executing Court nor the first appellate Court

and nor the High Court. In other words, when the

objection was not even raised at any stage of the

proceedings then it cannot be allowed to be raised

for the first time in this appeal. Nothing prevented

8 the judgment-debtors to raise this objection along

with several other objections to enable the Courts to

record their finding on such objection. It was,

however, not done.

16) Apart from what is held above, assuming for

the sake of argument that the judgment-debtors

could raise such objection and raised it, yet in our

view, it had no merit. It is for the simple reason that

the suit and the appeal, which arose out of the suit,

stood already decided much prior to the date of

amendment coming into force. In other words, the

suit/appeal remained unaffected with the

amendment.

17) It is clear from the fact that the suit was filed

in 1962 whereas the appellate Court passed the

decree in 1965 and the amendment in the Act was

introduced and came into force in 1973. So the lis

had already attained the finality much before the

amendment came into force.

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18) Second, the amendment was held retroactive

in nature as would be clear from Para 4 of Kesar

Singh(supra), which reads as under:

“4. The controversy is no longer res integra. This Court in Darshan Singh v. Ram Pal Singh, 1992 Supp(1) SCC 192 considered the effect of the Amendment Act, 1973 on the customary right of the Punjab Custom (Power to Contest) Act, 1920 and held that: (SCC pp. 219-22, paras 51-60)

“Considering the above principles, the provisions of the principal Act, the statement of objects and reasons and the provisions of the Amendment Act and the decisions of the Punjab High Court and of this Court, we are of the view that Section 7 of the principal Act as amended by the Amendment Act is retroactive and is applicable to pending proceedings. The decisions of this Court dated 28-11-1986 in Ujaggar Singh v.

Dharam Singh, CA No.1263 of 1973(SC) and in Udham Singh v.

Tarsem Singh, CA No.1135 of 1974(SC) dated 15-7-1987 do not need reconsideration.” (emphasis supplied)

19) Third, the amendment being retroactive, it was

applicable only to those proceedings, which were

pending on the date when the amendment came

10 into force, i.e. 1973, or where the proceedings were

initiated after the date of amendment.

20) In our considered view, in order to take benefit

of the amendment, it was necessary for the

appellants (judgment-debtors) to have filed the

second appeal against the decree of the first

appellate Court and if the second appeal had been

decided after 1973, the impact of the amendment on

the rights of the parties could have been considered

in the context of the amendment in the light of law

laid down by this Court in Kesar Singh’s case

(supra). It was, however, not done because, as

mentioned above, the decree in question had

already attained the finality in 1965.

21) If the rights of the parties had already been

crystallized then, in our opinion, subsequent

change in law would not take away such rights

which had attained finality due to lis coming to an

end inter se the parties prior to such change.

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22) In the case of Kesar Singh(Supra), the plaintiff

had filed the suit in 1978 and second appeal arising

out of the suit in 1979, so, the lis was initiated after

1973. It is due to this reason, it was held that the

rights of the parties were governed by the amending

Act. Such is not the case here. The law laid down in Darshan Singh and Kesar Singh (supra) cannot,

therefore, be applied to the facts of this case.

23) There is one more distinguishing fact due to

which law laid down in Darshan Singh and Kesar

Singh (supra) cannot be applied to the facts of this

case. It is not in dispute that the provisions of the

Amendment Act of 1973 are applicable only to the

State of Punjab whereas the case in hand arises out

of State of Haryana. There is nothing on record to

show that the provisions of this Act were extended

to the State of Haryana also and, if so, since when

and by which adaptation of the laws. 12

24) It is for these reasons, we are of the view that

the submission urged by the appellants questioning

the decree as being nullity is devoid of any merit

and deserves rejection.

25) Though learned counsel for the appellants did

not attack the concurrent findings of the two courts

in this appeal, yet we have perused the findings and

find that they were properly recorded. In the first

place, the objections raised were all on the facts

which could not be enquired into execution

proceedings. Second, it is a settled principle of law

that the executing Court cannot go behind the

decree. This principle squarely applies to the facts

of this case because all the factual objections raised

by the appellants could be raised only in the suit in

its trial but not in execution proceedings. In other

words, any enquiry into the objections would have

taken the executing Court behind the decree which

was not permissible in law.

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26) In the light of foregoing discussion, we find no

merit in the appeal, which fails and is hereby

dismissed.

………...................................J. [R.K. AGRAWAL]

…...……..................................J. [ABHAY MANOHAR SAPRE] New Delhi;

August 16, 2017

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