Punjab-Haryana High Court
Satbir vs Moji Ram And Anr on 6 July, 2023
2023:PHHC:085154
CR-3581-2023 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
118
CR-3581-2023
Date of decision : 06.07.2023
Satbir
..... Petitioner
Versus
Moji Ram and Anr.
..... Respondents
CORAM : HON'BLE MS. JUSTICE AMARJOT BHATTI
Present: Mr. Suryakant Gautam, Advocate
for the petitioner.
****
AMARJOT BHATTI J. (ORAL)
Satbir - petitioner has filed revision petition against impugned order
dated 28.03.2023 (Annexure P-7) vide which the trial Court has dismissed the
objections filed by him dated 11.07.2019 (Annexure P-6) filed against the
application for passing of final decree, which is Annexure P-5.
2. It is pointed out that the present petitioner and respondents No. 1 and
2 are real brothers. He had purchased suit property from his own sources of
income on 25.07.1981 but the sale deed was got registered in the name of all the
brothers. In September 2001, the family settlement was arrived at between the
brothers and the house in dispute was exclusively given to him in the presence of
Ratan Singh, Raj Singh and the respondents No. 1 and 2 were given Rs. 12 lacs in
equal shares. The said family settlement was reduced into writing. The learned
trial Court gave finding that he has failed to prove the said family settlement and
passed a preliminary decree which is under challenge before the learned District
Judge. The present petitioner filed application seeking permission to lead
additional evidence dated 26.08.2019 (Annexure P-1) to prove the aforesaid
LALIT SHARMA
2023.07.07 16:06
I attest to the accuracy and
integrity of this
order/judgment
2023:PHHC:085154
family settlement. The application was contested by respondent No. 1/plaintiff.
The reply is Annexure P-2 and the order of the First Appellate Court dated
10.11.2021 is Annexure P-3. Regarding this order, Civil Revision Petition No.
3127 of 2021 was filed in which the direction has been given to the Appellate
Court not to pass the final order in appeal. The copy of order dated 06.12.2021 is
Annexure P-4. During the pendency of the appeal, the respondent No. 1/plaintiff
filed application dated 30.04.2018 (Annexure P-5) for passing of final decree. The
objections filed by him dated 11.07.2019 (Annexure P-6) have been dismissed by
passing impugned order dated 28.03.2023 (Annexure P-7). It is argued that in case
the final decree is passed, his appeal preferred against preliminary decree will
become infructuous. Therefore, the executing Court should stay the proceedings
pertaining to the passing of final decree. It is further pointed out that as per order
dated 06.12.2021 (Annexure P-4), even passing of final order of the Lower
Appellate Court has been stayed in Civil Revision No. 3127-2021. It is prayed that
the present civil revision may be accepted and the impugned order dated
28.03.2023 (Annexure P-7) may be set aside.
3. I have considered the arguments. The factual position is not disputed.
The present petitioner Satbir is the brother of respondent/plaintiff Moji Ram and
respondent/defendant Halu Ram. It is matter of record that plaintiff Moji Ram
filed suit for preliminary decree for partition which has been allowed and
thereafter, the plaintiff Moji Ram filed application for passing of final decree,
whereas, the present petitioner/defendant No. 1 Satbir has filed appeal against the
said preliminary decree for partition which is pending before the First Appellate
Court. It is also matter of record that when the application for leading additional
evidence was declined by the Appellate Court, a revision was filed in which vide
LALIT SHARMA
2023.07.07 16:06
I attest to the accuracy and
integrity of this
order/judgment
2023:PHHC:085154
order dated 06.12.2021 (Annexure P-4) passing of final judgment in the said
appeal has been stayed. Now, the present petitioner/defendant No. 1 has filed
revision against impugned order dated 28.03.2023 (Annexure P-7) vide which the
objections filed by the petitioner in application for passing of final decree has been
dismissed.
I have carefully gone through the impugned order dated 28.03.2023
(Annexure P-7). The learned Court of Civil Judge (Junior Division), Rohtak has
dealt with all the points raised in the said objections. It is rightly held by learned
Civil Judge (Junior Division) by passing impugned order dated 28.03.2023 that the
Executing Court cannot stay the proceedings for final decree on its own. The
Executing Court is bound to execute the decree i.e. the passing of final decree on
the basis of preliminary decree already passed by the Court. In the preliminary
decree for partition, only shares are to be determined. The possession on the basis
of shares are to be demarcated subsequently in the passing of final decree.
Therefore, considering these facts, I do not find any reason to interfere in the
impugned order dated 28.03.2023 (Annexure P-7) and the same is accordingly
upheld and the Civil Revision is accordingly dismissed. However, the present
petitioner can approach the First Appellate Court for the stay of execution
proceedings for the implementation of preliminary decree for partition by filing
application under Order 41 Rule 5 of Civil Procedure Code, 1908 and on the filing
of said application, the learned First Appellate Court may dispose of the
application expeditiously.
(AMARJOT BHATTI)
JUDGE
06.07.2023
lalit
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
LALIT SHARMA
2023.07.07 16:06
I attest to the accuracy and
integrity of this
order/judgment
