Shri Surinder Kumar Arora vs Shri Bhola Nath
2010 Latest Caselaw 4135 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of judgment: 07.09.2010


+      RSA No.144/2010 & CM No.12995/2010


SHRI SURINDER KUMAR ARORA
                                                   ...........Appellant
                    Through:      Mr.Kirti Uppal, Advocate.

                    Versus

SHRI BHOLA NATH                                  ..........Respondent
             Through:             Mr.Rakessh Khanna, Sr.Advocate.
                                  with Mr.Rakesh Malhotra, Advocate.


HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                         Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J.(Oral)

CM No.12996/2010 (for exemption)

        Allowed subject to just exception.

RSA No.144/2010 & CM No.12995/2010

1.     The Trial Court on 30.9.2009 had decreed the suit of the

plaintiff. This was a suit which had been filed by the father Bhola

Nath against his son Surinder Kumar seeking a decree of

possession and permanent injunction.               The suit property was

property bearing no.100, Patel Gali Nos.1 &2, near Laxmi Cinema,

Gandhi Nagar, Delhi.        The Trial Judge had framed eight issues.

Issue no.6 was relevant which inter alia reads as follows:

       "Whether the plaintiff is entitled to the relief of possession, as
       claimed for ? OPP"
The onus to discharge this issue was upon the plaintiff. Testimony

RSA No.144/2010                                              Page 1 of 3
 of PW-1 Bhola Nath had been considered.                      Defendant had

examined three witnesses.          The contention of the defendant that

this was a HUF property had been repelled.                     Ex.DW-4/5 to

Ex.DW-4/7 were documents written by the defendant to the Sales

Tax Department wherein he had admitted that the plaintiff is the

owner of the suit property. Trial Judge had relied upon the

provisions of Section 58 of the Evidence Act to draw a finding that

facts admitted are not required to be proved.           Suit of the plaintiff

was decreed in his favour.

2.    The First Appellate Court vide judgment and decree dated

17.5.2010 had confirmed the order of the Trial Judge.

3.    Substantial questions of law have been formulated on page 2

in the body of the appeal. Contention of the learned counsel for

the appellant is that the decree passed by the Trial Judge and

confirmed by the First Appellate Court is an inexecutable decree in

as much as, as it is admitted between the parties that the plaintiff's

father has on 22.12.2006 gifted the suit property to his daughter

Smt.Renu.      In this view of the matter, the decree having been

passed in favour the decree holder who is the plaintiff Bhola Nath,

the new owner now being Smt.Renu cannot execute this decree. It

is further submitted that PW-1 in his cross-examination has stated-

      "It is correct that Defendant is in possession and occupation of the MIANI
      and a room on the first floor."
4.    This admission of PW-1, again makes the decree inexecutable

as the decree for possession has been passed qua the ground floor.

It is submitted that these are substantial questions of law.

5.     Learned counsel for the respondent has negatived these

submissions.

6.    In (2001) 6 SCC Dhurandhar Prasad Singh Vs. Jai Prakash
RSA No.144/2010                                              Page 2 of 3
 University & Ors, the Apex Court had examined the powers of the

Court under Section 47 of the Code of Civil Procedure. It was held

that the objections under Section 47 of the Code to the

executability of the decree are maintainable, if it is found that the

same is void ab initio and a nullity, apart from the ground that the

decree is not capable of execution under law either because the

same was passed in ignorance of such a provision of law or the law

was promulgated making a decree inexecutable after its passing.

7.       This Court is sitting in second appeal; it cannot re-appreciate

facts. It is only substantial questions of law which can be gone into

by this Court. Contentions raised before this Court as to whether

the decree is executable or not, if legally tenable are all matters

which can be dealt with by the Executing Court. These contentions

propounded before this Court do not raise any substantial question

of law. Both the Courts below had given concurrent findings that

the plaintiff/father being the owner of the suit property could

maintain the suit for possession against his defendant/son who was

only a licensee in the suit property and after having revoked his

licence he was entitled to the possession of the suit property.

There is no merit in this appeal. The appeal as also the pending

application are dismissed in limine.



                                            INDERMEET KAUR, J.

SEPTEMBER 07, 2010 nandan