In the case of Yoginder Kumar Sud v. Thakur Rajiv Singh and Another, the Punjab and Haryana High Court has held that once the suit for a permanent injunction of the petitioner stood decreed the Executing Court could not render the said decree nugatory by holding that the petitioner ought to file a suit for partition.
Brief facts are that the suit filed by the petitioner claiming himself to be the owner in possession of the suit property and instituted for a permanent injunction against respondent no.1 restraining him from interfering in his possession, was decreed by the Trial Court.
Aggrieved, respondent no.1 challenged the judgment and decree in appeal, however, the same was dismissed. When the matter reached the High Court, it, vide a common judgment dismissed both the regular second appeals. Hence, the present civil revision under Article 227 of the Constitution of India has been filed for setting aside the impugned order.
The Court observed at the very outset that the present case has a chequered history and the petitioner, having succeeded in his suit for injunction right up to the Supreme Court (since SLP was filed there), was struggling to reap the fruits of the decree in his favour.
The petitioner filed an application for police help and the same was dismissed by the execution court which while accepting the objection petition filed by respondent no.1 held that respondent no.1 is a co-sharer in the suit property but also that the petitioner ought to file a suit for partition.
The Court held that the said findings recorded by the Executing Court are perverse and illegal on the face of it. The Court noted that in Trial Court, respondent no.1 did not raise the defense that he is a co-sharer; he did not even challenge the judgment which stated that the petitioner was in possession of the suit property. Due to which, the Court held,
“this Court is unable to accept the findings recorded by the Executing Court stating that respondent no.1 is a co-sharer in the suit land.”
Thus, Court held that once the suit for a permanent injunction of the petitioner stood decreed the Executing Court could not render the said decree nugatory by holding that the petitioner ought to file a suit for partition.
The Court added that the impugned order passed by the Executing Court shows that it (the Executing Court) permitted the to set up a case beyond that pleaded by him in the suit itself and thus, Court opined that the Executing Court clearly traversed beyond the decree which it was called upon to execute and exceeded the jurisdiction vested in it.
Now adverting to the facts of the case, the court observed that the suit was instituted for a permanent injunction against respondent no.1 and that the same was decreed and also that the decree was affirmed right up to the Supreme court. The Court noted that the petitoner sought with his application for enjoying the fruits of his decree.
Also, on the argument of the respondent on him being a co-sharer, the Court opined that the ownership over the suit property was neither pleaded nor proved by such respondent.
Further, it was noted that the petitioner in his application for providing police help for enforcement of the judgment and decree averred that the respondent trespassed on the suit land and by force kidnapped the labourers resulting in the registration of a case against him.
“This alleged act by the respondent is clearly in violation of the decree dated 24.08.2002 and not in due course of law”, held the Court.
Accordingly, the court set aside the impugned order.
Case Title: Yoginder Kumar Sud versus Thakur Rajiv Singh and Another
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