Punjab-Haryana High Court
Shamsher Kaur@Shamsher Kaur Dhillon vs Guru Hargobind Sahib Sewa Society Regd. ... on 7 May, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:063472
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
132
CR-3546-2023
Date of decision: 07.05.2024
SHAMSHER KAUR@SHAMSHER KAUR DHILLON
..Petitioner
Versus
GURU HARGOBIND SAHIB SEWA SOCIETY REGD. & ORS.
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Ashish Aggarwal, Sr. Advocate
with Mr. Karan Singla, Advocate
and Ms. Aashna Aggarwal, Advocate
for the petitioner.
Mr. Paras Jagga, Advocate
for respondents.
ANIL KSHETARPAL, J(Oral)
1. The petitioner before this Court is a decree holder. In a suit for
mandatory injunction filed by the petitioner against her licensee, a decree for
delivery of possession was passed on the basis of settlement between the
parties. The judgment debtor was required to hand over the possession on
31.03.2021. The respondent filed objection petition on 09.01.2023 claiming
that it is possession of the shop since August, 2019, when the decree holder
and the judgment debtor handed over possession to them. The Executing
Court has culled out the following issues while calling upon the parties to
lead evidence:-
"1. Whether the objector is in legal possession of the suit
property with the consent of the Decree Holder? OPO
2. Whether the objection petition is false, frivolous and is
result of collusion of Bhagatdeep Singh, JD? OPDH
3. Relief."
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Neutral Citation No:=2024:PHHC:063472
2. The correctness of such order is challenged before this Court.
3. The learned Senior counsel representing the petitioner submits
that the respondent-Society is using the same GST number, which was being
used by the judgment debtor. He submits that the Executing Court before
settling the issues was required to record a prima facie finding that there is
some substance in the objections filed by the respondents. While relying
upon the judgment passed by the Supreme Court in Rahul S. Shah Vs.
Jinendra Kumar Gandhi and others, (2021) 6 SCC 418, he submits that the
issues while calling upon the parties to lead evidence before the Executing
Court should be rare and in exceptional cases.
4. Per contra, the learned counsel representing the respondents
submits that the Executing Court has only framed issues and while calling
upon the parties to lead evidence. Hence, no prejudice is caused to the
petitioner. In support of his submissions, he relies upon the judgment passed
in Jini Dhanrajgir and another Vs. Shibu Mathew and another, 2023 AIR
(SC) 2567.
5. This Court has considered the submissions of the learned
counsel representing the parties.
6. On a Court question "whether the respondents have any
document to prove that the decree holder and the judgment debtor jointly
handed the possession of the premises to the respondent"?, he submits that
all the documents have been attached with the objection petition.
7. This Court has carefully read the objection petition. The
respondent has annexed copy of the resolution of the Society, photograph
and pamphlet offering to sell medicine and other groceries at subsidised rate.
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Neutral Citation No:=2024:PHHC:063472
8. Before settling the issues, the Executing Court is required to
prima facie form an opinion that a triable issue requires adjudication while
deciding the objections of the third party. The Supreme Court has laid down
that issue should be framed only in rare and exceptional cases, however,
from the reading of the impugned order, it is evident that the Executing
Court has failed to record any such prima facie observations.
9 Keeping in view the aforesaid facts, the revision petition is
allowed. The impugned order passed on 10.04.2023, is set aside while
requesting the Executing Court to re-examine the entire matter and pass
fresh order in accordance with law within a period of next two months, from
today, positively.
10. All the pending miscellaneous applications, if any, are also
disposed of.
May 07th, 2024 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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