Punjab-Haryana High Court
Ranbir Singh vs Davinder Singh (Now Deceased) Thr His Lr on 9 September, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
CR-4517-2019 (O&M) ws:
114 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR-4517-2019 (O&M)
Date of decision : 09.09.2024
Ranbir Singh ee Petitioner
versus
Davinder Singh (since deceased) through
hisLRs, eae Respondent
CORAM : HON'BLE MR.JUSTICE PANKAJ JAIN
KK
Present :- Mr. Ankur Goyat, Advocate for
Mr. Ramesh Goyat, Advocate
for the petitioner.
Mr. Avinit Avasthi, Advocate
for the respondent.
ae 3 2
PANKAJ JAIN, J. (ORAL)
1 By way of present petition filed under Article 227 of the
Constitution of India petitioner has laid challenge to order dated
23.04.2019 (Annexure P-6) passed in Exe/42/2019 whereby warrants of
possession have been issued.
2 Petitioner is a judgment debtor-JD qua decree of possession
passed in favour of Devinder Singh father of the present petitioner dated
29.09.2016 passed by Civil Judge (Junior Division), Khanna with
respect to possession of the property measuring 0K-10M comprising of
Khewat no.2236, Khatoni No.3215, Khasra No.2103 and khewat
No.2300, khatoni No.3392, Khasra No.2104.
POOJA SHARMA
3 Petitioner preferred an appeal which was dismissed vide
judgment and decree dated 13.10.2017 passed by Additional District
Judge, Ludhiana. Devinder Singh filed execution. During the execution
proceedings, Devinder Singh-the decree holder unfortunately died on
18.06.2018. Brother of the present petitioner i.e. the other son of
Devinder Singh namely Bhajanvir Singh i.e. the present respondent
sought impleadment on the basis of WILL alleged to have been executed
by Devinder Singh dated 19.05.2004. Present petitioner objected to the
same by filing objections. The same were dismissed vide order dated
26.11.2018 and the present respondent Bhajanvir Singh was ordered to
be impleaded as LR of late Devinder Singh-the decree holder. The
aforesaid order dated 26.11.2018 has remained unchallenged till date.
Bhajanvir Singh withdrew the execution on 01.03.2019 and later on,
filed second execution application on 23.04.2019 in which the interim
order has been passed and warrant of possession has been issued
against the present petitioner.
4 Learned counsel for the petitioner while assailing the
impugned order submits that the same has been passed without issuing
any notice to the present petitioner. He submits that Bhajanvir Singh
was disinherited by Devinder Singh-the father way back in 2002 and
thus there was no reason for the father to bequeath the property in
favour of Bhajanvir Singh through WILL dated 19.05.2004 propounded
by Bhajanvir Singh. Learned counsel further submits that apart from
disinheritance, litigations were also pending between Devinder Singh
and Bhajanvir Singh. He also submits that in the present petition,
CR-4517-2019 (O&M) n3n
Bhajanvir Singh in order to defeat the right of the petitioner first
withdrew the execution petition on 01.03.2019 and later on filed second
one on 23.04.2019.
5 Per contra learned counsel for the respondent submits that
once the objections of the petitioner against impleadment of Bhajanvir
Singh as legal representative of Devinder Singh were dismissed vide
order dated 26.11.2018. Petitioner opted not to challenge the said order
despite there being a remedy provided under law, he cannot be allowed
to agitate qua the same in the present revision petition. Further relies
upon the provisions as contained under Order 21 Rule 22 CPC to submit
that there was no requirement for issuance of notice. He further brings
to the notice of this Court that WILL has already been challenged by
present petitioner in a separate suit. He thus submits that no fault can be
found with the impugned order whereby warrant of possession has been
issued against the petitioner.
6 I have heard learned counsel for the parties and have gone
through the records of the case.
7 It is not in dispute that the petitioner objected to
impleadment of Bhajanvir Singh as legal representative of decree holder
Devinder Singh on the basis of WILL dated 19.05.2004. Detailed order
dismissing the objections was passed by Civil Judge (Jr. Division),
Khanna vide order dated 26.11.2018. The order has been placed on
record as Annexure P-4. Thereafter, the first execution petition
remained pending for more than 3 months before it was withdrawn on
01.03.2019. The petitioner having not laid any challenge to the said
CR-4517-2019 (O&M) 4:
orders cannot plead, qua the same that too when even in the revision
petition there is no challenge to the order dismissing his objections. So
far as issuance of warrant of possession against the petitioner in second
execution petition without notice is concerned, the same is strictly in
accordance with the procedure as laid down in Order 21 Rule 22 CPC
which reads as under :-
"22. Notice to show cause against execution in certain
cases.-(1) Where an application for execution is made,- (a)
more than [two years] after the date of the decree, or
(b) against the legal representative of a party to the decree
[or where an application is made for execution of a decree
filed under the provisions of section 44A], [or]
[(c) against the assignee or receiver in insolvency, where
the party to the decree has been adjudged to be an
insolvent]
the Court executing the decree shall issue a notice to the
person against whom execution is applied for requiring him
to show cause, on a date to be fixed, why the decree should
not be executed against him:
Provided that no such notice shall be necessary in
consequence of more than [two years] having elapsed
between the date of the decree and the application for
execution if the application is made within [two vears]
from the date of the last order against the party against
whom execution is applied for, made on any _ previous
application for execution, or in consequence of the
application being made against the legal representative of
the judgment-debtor if upon a previous application for
execution against the same person the Court has ordered
execution to issue against him.
CR-4517-2019 (O&M) 5
(2) Nothing in the foregoing sub-rule shall be deemed to
preclude the Court from issuing any process in execution of
a decree without issuing the notice thereby prescribed, if
for reasons to be recorded, it considers that the issue of
such notice would cause unreasonable delay or would
defeat the ends of justice."
8 The proviso appended to Order 21 Rule 22 (1) CPC is clear
and unambiguous. The subsequent application having been filed within
two years from the withdrawal of the previous execution application,
there was no requirement for issuance of notice. Thus Executing Court
did not commit any error in issuance of warrant of attachment against
the petitioner without issuance of any notice to him.
9 Needless to say that anything observed herein shall not be
construed to be an opinion on the merits of the case, more so when an
independent lis with respect to validity of WILL is already pending in a
separate suit.
10 Present revision petition is dismissed with liberty to the
petitioner to avail his remedies in accordance with law.
(PANKAJ JAIN )
JUDGE
09.09.2024
Pooja sharma-I
Whether speaking/reasoned Yes/No
Whether Reportable : Yes/No
