Allowed

Nirmal Singh v. Banwari Lal

Punjab & Haryana HC2 Sept 2013CR/1561/2012

Case brief

AI extract

What is this about?

The High Court in a civil revision by the decree holder, a subsequent purchaser, refused to stay execution of a decree for recovery of possession. It held that a judgment debtor cannot defeat execution merely by filing a partition suit or claiming a fractional share, and ruled that Order 21 Rule 29 CPC requires a general discretion rather than mandating a stay.

What did the court decide?

The civil revision against the rejection of the stay application was allowed; no costs to party.

Nirmal Singh Vs Banwari Lal — Execution and Attachment | Punjab & Haryana HC (2013)

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C.R. No.1561 of 2012 -1-

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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

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C.R. No.1561 of 2012 Date of Decision.02.09.2013

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Nirmal Singh s/o Jagan Singh

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.....Petitioner

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Versus

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Banwari Lal s/o Chuni Ram

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.......Respondent

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Present: Mr. HPS Ghuman, Advocate for the petitioner.

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Mr. B.S. Sidhu, Advocate for the respondent.

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CORAM:HON'BLE MR. JUSTICE K. KANNAN

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Whether Reporters of local papers may be allowed to see the judgment ? No

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To be referred to the Reporters or not ? No

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Whether the judgment should be reported in the Digest? No

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K. KANNAN J. (ORAL)

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The revision is at the instance of the decree holder, who had secured a decree for recovery of possession of property comprised in Khasra No.110/1 1 kanal, 110/2/1 1 kanal 10 marlas entered at Khewat No.399/339 within specific boundaries. The property over which decree holder had sought for recovery was identified as a property in respect of which the defendant had raised a construction shown in red colour in the site plan attached to the plaint. In execution, an application was filed by a purchaser from one of the decree holders namely the 3^rd petitioner and contends that the decree has become inexecutable since he had himself purchased the property from one of the decree holders. It is also claimed that he has filed a suit for partition and the same is pending and till such a decision is taken, the

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Kamboj Pankaj Kumarexecution petition levied by the remaining decree holders must be 2013.09.06 12:19 I attest to the accuracy and integrity of this document Chandigarh

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C.R. No.1561 of 2012

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stayed. There was a reference under Order 21 Rule 29 for staying the execution proceedings in a case where the suit is pending against the decree holder at the instance of a judgment debtor.

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Learned counsel for the petitioner relies on a jdugment rendered by this Court in Nirmal Singh Vs. Pritam Singh in C.R. No.5493 of 2012 dated 30.07.2012 where a similar point has been addressed and the Court has considered the extent of applicability of Order 21 Rule 29. I have held that a judgment debtor from one of the decree holders cannot fend off execution but there shall be a liability for judgment debtor or a person, who seeks claim for fractional share to surrender possession and only work out his own remedy for partition in independent proceedings. Referring to Order 21 Rule 29, I have held that this provision allows for a discretion to be exercised while staying the proceedings and cannot be taken to conclude rights of parties at all times.

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In this case, learned counsel appearing for the respondent also wants to contend that the property purchased is not an identifiable property which is out of a larger extent of property 22 kanals 10 marlas and therefore, the plaintiff will have an independent remedy to work out his right in partition and the respondent's possession cannot be disturbed. I have already referred to the fact that the suit specifically provides for a relief of recovery of possession and identification of the property which was required to be delivered to the plaintiffs by reference to a site plan. In this case the judgment debtor has himself purchased the property only from one of the decree holders and therefore, he cannot compel the decree holder to avail of the remedy Kamboj Pankaj Kumar 2013.09.06 12:19 I attest to the accuracy and integrity of this document Chandigarh

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C.R. No.1561 of 2012

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for partition. On the other hand, as a judgment debtor he is bound to surrender possession of the property in respect of which the decree has been passed and it would be left to him to work out his remedy for partition. Indeed such a suit has also been filed but I will not find that this is a case where relief of staying the execution process should be provided merely because the judgment debtor has become a purchaser of the fractional share of one of the decree holders. The decree is bound to be complied with and I hold that the objection taken by the judgment debtor before the Executing Court about the inexecutability was not tenable.

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The learned counsel for the respondent has an argument to make that the Court could have allowed for stay of the proceedings and if at all, any mistake was committed by the Court below, it was the manner of disposal of the application by dismissing the execution petition itself. The Court may, therefore, consider the grant of stay in the manner provided under Order 21 Rule 29. I have held that Order 21 Rule 29 CPC cannot be an answer to all situations to defeat the execution of the decree. The decree is bound to be complied with and further action for execution shall be proceeded rejecting the contention raised by the respondent.

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The civil revision is allowed. There shall be no costs.

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(K. KANNAN) JUDGE

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September 02, 2013 Pankaj*

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Kamboj Pankaj Kumar 2013.09.06 12:19 I attest to the accuracy and integrity of this document Chandigarh

Nirmal Singh v. Banwari Lal

Case brief

What is this about?

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Nirmal Singh v. Banwari Lal

Case brief

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