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Ram Nath and ors. Vs. Murti Shri Krishan Maharaj Through Mahant Prem Dass - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 706 and Civil Misc. No. 3550 of 1973
Judge
Reported inAIR1974P& H184
AppellantRam Nath and ors.
RespondentMurti Shri Krishan Maharaj Through Mahant Prem Dass
Excerpt:
.....to the decision of the matter requiring determination by it. their failure to point out to the learned district judge that in execution proceedings physical possession of a part of the land and symbolical possession of the rest had been delivered to the idol and that thereafter the execution proceedings were stayed was immaterial. this is a very reasonable request, in turning down which the learned additional district judge failed to exercise a jurisdiction vested in him by law. he perhaps thought that the decree had been fully satisfied which is really not so because the idol is still entitled to seek actual possession of 65 kanals 9 marlas of land, only symbolical possession of which was delivered to it on the 17th of february, 1973. his rejection of the prayer made by the..........be dispossessed from the land in dispute.4. on the 21st of april, 1973, the idol applied to the learned district judge for vacation of the order protecting the possession of the petitioners. the matter came up for decision before shri v. k. jain, additional district judge, karnal, to whom the appeal had been transferred by the learned district judge in the meantime. the learned additional district judge held that the decree had already been executed and the petitioners had been dispossessed from the land in dispute so that there was no question of any stay of execution being granted to them. he was further of the opinion that the petitioners were guilty of concealment of facts from the learned district judge inasmuch as they did not disclose to him that the executing court had also.....
Judgment:
ORDER

1. This petition for revision of the order dated the 2nd of June, 1973, passed by Shri V. K. Jain, Additional District Judge, Karnal, has arisen thus,. Murti Shri Krishan Maharaj (the respondent before me and hereinafter referred to as the idol) filed a suit against the three petitioners for possession of 75 Kanals 16 Marlas of land situated in village Bani, Tehsil Thanesar, District Karnal. The suit was decreed on the 12th of February, 1973. The idol took out execution of the decree and a warrant for the delivery of the land was issued by the Executing Court on the 15th of February, 1973. The warrant was executed on the 17th of February, 1973, when physical possession of an area measuring 10 Kanals 7 Marlas out of the disputed land was delivered to the idol. The rest of the area was under crop and symbolical possession thereof was delivered to the idol on the same day.

2. On the 20th of February, 1973, the petitioners applied to the Executing Court for stay of execution. The order passed by the Executing Court on the application was:

'In the above noted case, a warrant for delivery of possession of the suit land was issued on 15-2-1973. Please send a report on the said warrant. If the said warrant has not been executed, the same be returned immediately unexecuted.'

3. Against the decree passed by the trial Court the petitioners filed an appeal with the District Judge at Karnal on the 27th of March, 1973, and on the same date presented to him an application praying that their possession be not disturbed till the decision of the appeal. Notice of the application was given to the idol with an order that till the disposal thereof the petitioners would not be dispossessed from the land in dispute.

4. On the 21st of April, 1973, the idol applied to the learned District Judge for vacation of the order protecting the possession of the petitioners. The matter came up for decision before Shri V. K. Jain, Additional District Judge, Karnal, to whom the appeal had been transferred by the learned District Judge in the meantime. The learned Additional District Judge held that the decree had already been executed and the petitioners had been dispossessed from the land in dispute so that there was no question of any stay of execution being granted to them. He was further of the opinion that the petitioners were guilty of concealment of facts from the learned District Judge inasmuch as they did not disclose to him that the Executing Court had also made an order staying execution. For both these reasons the learned Additional District Judge vacated the order passed earlier by the learned District Judge to the effect that the possession of the petitioners was not to be disturbed. It is against the order of the learned Additional District Judge which is dated the 2nd of June, 1973, that the petitioners have come up in revision to this Court.

5. A preliminary objection has been raised by Shri Aggarwal and the same is based on Rule 7 contained in Part (a) of Chapter I-A of Volume V of the Rules and Orders of this Court. That rule runs thus:

'7. Every such petition shall be stamped as required by law and shall be accompanied by a copy of the decree or order in respect of which such application is made and by a copy of the judgment upon which such decree is founded.

In the case of petitions for revision of the decree or order of an Appellate ourt, a copy of the judgment or order of the Court of the first instance shall also be filed.'

6. No copy of any judgment or order of the trial Court has been filed with the petition which, according to Mr. Aggarwal, is incompetent by reason of the provisions of the second paragraph of the rule. On a careful consideration of the same however, I as unable to agree with him. The second paragraph of the rule, in my opinion, applies only to those cases in which revision is sought of a decree or order which has been passed in appeal from a decree or order of a Lower Court. The two paragraphs of the rule are supplemental to each other and must be read together so that a harmonious construction may be placed on them. The first paragraph applies to petitions seeking revision of any decree or order and requires that such a petition shall be accompanied by a copy of the decree or order of which revision is sought along with a copy of the judgment upon which such decree is based, while the second paragraph therein requires that when the petition is one for revision of a decree or order of an Appellate Court, an additional document, namely, the judgment or order of the Court of first instance shall also be filed. In the context in which the words 'Appellate Court' occur, they must be construed to mean a Court which has passed the order sought to be revised while hearing an appeal from an order of a Subordinate Court. In other words, where the 'Appellate Court' passes an original order in connection with an appeal pending before it, the provisions of the second paragraph of the rule do not come into play for, in that case, there is no 'judgment or order of the Court of first instance' in the sense in which those words are used in the rule and there is good reason for such interpretation being placed on the second paragraph of the rule, the object of which is to ensure that this Court has before it all the available material which is relevant to the decision of the matter requiring determination by it. Behari Lal and Har. 167, decided by Pandit, J., on which reliance is placed by learned Counsel for the idol lays down no rule to the contrary. All that it says is that when a petition seeks the revision of an order passed in an appeal instituted against another order the copy of the judgment of the Court of first instance must be filed in the High Court which has no power to dispense with its production.

7. Not finding any substance in the preliminary objection I repel it. I now take up the contentions raised on behalf of the petitioners, the first one which is that there was no concealment of any material fact by them from the learned District Judge. There is no dispute between the parties that physical possession of 10 Kanals 7 Marlas and symbolical possession of 65 Kanals 9 Marlas of the land in dispute was delivered to the idol on the 17th of February, 1973. But then physical possession of the said area measuring 65 Kanals 9 Marlas which was admittedly with the petitioners prior to the execution was not disturbed on that date and to that extent the petitioners had the right to apply to the learned District Judge for stay of execution. It may be noted that all that they said in their application was that they were in possession of the disputed and prayed that their possession be protected. Their failure to point out to the learned District Judge that in execution proceedings physical possession of a part of the land and symbolical possession of the rest had been delivered to the idol and that thereafter the execution proceedings were stayed was immaterial. I am of the opinion, therefore, that there was no such concealment of facts by the petitioners from the learned District Judge as would disentitle them to the relief of stay of further execution.

8. According to learned Counsel for the petitioners, they are still in possession of that part of the disputed land of which only symbolical possession was delivered to the idol on the 17th of February, 1973, and all that they seek now is that that possession be protected till the decision of the appeal by the learned Additional District Judge. This is a very reasonable request, in turning down which the learned Additional District Judge failed to exercise a jurisdiction vested in him by law. He perhaps thought that the decree had been fully satisfied which is really not so because the idol is still entitled to seek actual possession of 65 Kanals 9 Marlas of land, only symbolical possession of which was delivered to it on the 17th of February, 1973. His rejection of the prayer made by the petitioners was, therefore, based on an erroneous assumption.

9. For the reasons stated, I accept, the petition, set aside the impugned order and stay further execution of the decree till the decision of the appeal pending before the learned Additional District Judge subject to the condition that the petitioners furnish within 20 days from today security to the satisfaction of the learned Additional District Judge for the due performance of such decree as may ultimately be binding on them. There will be no order as to costs.

10. Petition allowed.


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