Ghulam Ali Azad vs Prem Vaid
2023 Latest Caselaw 2160 j&K

                                                                    134
     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU
CM(M) No. 186/2023
CM No. 5939/2023


Ghulam Ali Azad, age 66 years S/o                        .....Petitioners/Appellants
late Rehmat Ullah Bhat R/o 156,
Gujjar Nagar, Jammu


R.
                        Through: Mr. Aman Bhagotra, Advocate
                  Vs
Prem Vaid w/o Shri Surinder Mohan Vaid
R/o H. No. 266, Sector-01, Channi Himmat,
District Jammu.

                                                               ..... Respondents

Through: None

CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER (ORAL 04.10.2023

1. The petitioner has challenged order dated 18.09.2023 passed by the

learned 1st Additional District Judge, Jammu (hereinafter to be referred as

the Executing Court), whereby application of the petitioner seeking

dismissal of the execution petition has been declined.

2. It appears that the respondent/plaintiff had filed a suit against the

petitioner/defendant, in which judgment in terms of Order 15 Rule 1 CPC

came to be pronounced on 26.03.2016, where-after Execution Petition came

to be filed by the respondent-decree holder before the Executing Court on

15.12.2016. During the pendency of the said execution petition, the

petitioner/judgment debtor filed an application before the Executing Court

seeking dismissal of the execution petition on the ground that the said

petition has been filed by an unauthorized person. According to case of the

CM(M) 186/2023

petitioner, the execution petition has been filed by the decree holder through

her purported attorney holder, namely, Surinder Mohan Vaid, though there is

no document to show that the said person is the authorized attorney of the

decree holder, Prem Vaid. The learned Executing Court after hearing the

parties passed the impugned order and dismissed the application of the

petitioner by virtue of order dated 18.09.2023.

3. The petitioner has assailed order dated 18.09.2023 on the ground that

the Executing Court has failed to appreciate that no power of attorney of

Surinder Mohan Vaid was annexed with the execution petition, nor the same

was produced during the pendency of the suit. It has been submitted that

Surinder Mohan Vaid is not the authorized agent of the respondent and as

such, he had no locus standi to file the execution petition.

4. Heard and considered.

5. If we have a look at the documents produced on record by the

petitioner along with this petition, it is revealed that the execution petition

has been filed by the respondent through her attorney holder and husband,

Shri Surinder Mohan Vaid. The contention of the petitioner is that Shri

Surinder Mohan Vaid is not holding the power of attorney on behalf of his

wife i.e. the respondent herein.

6. It is not in dispute that the suit on behalf of the respondent, out of

which the execution petition has arisen, was filed by the respondent through

her attorney, Shri Surinder Mohan Vaid. It is also not in dispute that the said

suit was decreed on the basis of admission made by the petitioner/defendant,

meaning thereby that the petitioner had accepted the pleadings of the

respondent including her assertion that Shri Surinder Mohan Vaid, happens

CM(M) 186/2023

to be her power of attorney holder. Having suffered a decree on the basis of

admission, the petitioner cannot turn around and question the locus of

Surinder Mohan Vaid to file execution petition on behalf of the respondent

once he has accepted the status of Mr. Vaid as attorney of the respondent.

7. Apart from the above, it is admitted case of the parties that the main

suit was filed by the respondent through her husband and attorney holder,

Mr. Surinder Mohan Vaid and the transactions, which were subject matter of

the suit had taken place between the petitioner and the respondent through

Shri Surinder Mohan Vaid , who was acting on behalf the respondent.

Therefore, it can safely be stated that Shri Surinder Mohan Vaid was

acquainted with the facts of the case. As per Sub-Rule (2) of Rule 11 of

Order 21 CPC, execution petition can be filed not only by the decree holder

but it can also be filed by some other person, who, to the satisfaction of the

Court is found to be acquainted with the facts of the case. Therefore, even

Shri Surinder Mohan Vaid, the husband of respondent, who is shown to be

in knowledge of the facts of the case, was competent to file the execution

petition before the Executing Court.

8. For the forgoing reasons, the impugned order passed by the Executing

Court is neither perverse nor the same is contrary to law. The impugned

order, therefore, does not call for any interference by this Court. The

petition, therefore, lacks merits and is dismissed, accordingly.

(SANJAY DHAR) JUDGE Jammu 04.10.2023 Karam Chand/Secy Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No