Juhruddin and Other Vs Abdul Rajjak and Other

Challenge in the presen t petition is to the order date d 16.11.2024 (Annexure P10) whereby application filed by th e petitioners/ t hird party objectors for giving opportunity to press th e objections/r e storation of the objections, h a s been dismissed; AND settin g aside the order dated 13.09.2023 (Annexure P11) vide which third part y objections o f the petitioners, has been dism i ssed as not pressed.

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Learned counsel for th e petitioners submits that th e third party o bjections of the petitioners h a ve been wrongly dismissed a s not pressed vide order dated 13.09.2023 ( A nnexure P11), as, a perusal o f the zimni or d ers (Annexure P7) reveals tha t the matter was adjourned on 05.08.2023 a nd 17.08.2023 in view of the p r evailing law and order situatio n in the area a s well as imposition of curfew / Section 144 Cr.P.C. because o f which none had appeared before the Cou r t on 13.9.2023. It is submitted that in view of this fact, even the application filed by the petitioners fo r

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restoration o f the said objections, has be e n wrongly dismissed vide th e impugned o r der dated 16.11.2024 (Annexure P10).

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Heard.

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Brief facts of the ca s e are that the responden t No.1/plainti f f had filed a suit for per m anent injunction against th e respondents No.2 to 4/defendants for rest r aining the respondents No.2 t o 4 from inter f ering in the peaceful possessi o n of respondent No.1 over th e suit land. Th e respondents No.2 to 4 had co n tested the suit and filed a join t written stat e ment stating that the defend a nts/respondents No.2 to 4 ar e actual owners in possession of suit land. S ubsequently, the suit filed b y respondent N o.1 was decreed in favour of r espondent No.1 vide judgmen t dated 11.0 6 .2012 (Annexure P1) and respondents No.2 to 4 wer e restrained f rom interfering in the p o ssession of the responden t No.1/plainti f f. Even appeal against jud g ment dated 11.06.2012 wa s dismissed b y the learned Additional District Judge vide judgment dated 24.12.2012 (Annexure P2). Subsequently, e x ecution petition (Annexure P3 ) was filed b y the plaintiff/decree holder/ r espondent No.1 in which th e respondents No.2 to 4 were proceeded ag a inst ex parte vide order date d 06.05.2017 ( Annexure P4). In the said exe c ution petition, the petitioner s had filed t h ird party objections on 06.05.2017 (Annexure P5). Th e respondent N o.1/decree holder had duly fil e d reply to the objections date d 06.05.2017 ( Annexure P6). However, as p er the record, the petitioner s failed to a p pear before the learned Ex e cuting Court. Accordingly, o n

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06.09.2023, following order was passed b y learned Civil Judge (Junio r

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Division), Fe r ozepur Jhirka:-

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“Today, case called several tim e s since morning but counsel fo r the applicants/third party ob j ectors has not come presen t before this court. In the interest of justice, now to come up o n 13.09.2023 for awaiting pre s ence of applicant/third part y objectors and for further proce e dings.”.

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On 13.09.2023, as the p e titioners again failed to put in appearance, the third-party objections filed by them were dismissed as no t pressed; an d following order was passed: -

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“Today the case was fixed f o r presence of applicants/thir d party objectors in view of orde r dated 06.09.2023. Case calle d several times, since morning b u t none has appeared on behal f of the applicants/third party o b jectors. It is already 03:45 P.M. Waited sufficiently. Further w a it is not justified. As per fact s and circumstances, it appears that the applicants/third part y objectors are not desirous to pr o ceed with the objections raise d by them. As such, the third p arty objections raised by th e applicants/ objectors namely Juhruddin, Altaf, Arshad an d Saddam sons of Chand Khan a re hereby dismissed being no t pressed upon. Now to come up on 22.09.2023 for furthe r proceedings.”

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On 22.09.2023, keepin g in mind the fact that th e judgment a n d decree under execution wa s dated 11.6.2012, warrants o f possession qua suit land were issue d in favour of the decre e holder/resp o ndent No.1; and the following o rder was passed: -

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“From the perusal of the case fi le it transpires that the presen t execution petition pertains the execution of the judgment an d decree dated 11.06.2012. It ha s been stated that the JDs hav e dispossessed the decree holder from the suit land and reques t is made to issue the warrant o f possession of suit land. Furthe r the JDs have turned ex parte on dated 06.05.2017 and th e objection raised by the appli c ants/third party objectors ha s also been dismissed being not pressed upon vide order date d 13.09.2023. As such, let warra n t of possession qua the land i n dispute be issued in favour of t h e DH for 13.10.2023.”

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Subsequently, the petitioners filed an applicatio n seeking setting aside of the above said o r der dated 13.9.2023 whereb y their third- p arty objections were dismis s ed as not pressed. The sai d application o f the petitioners has been dis m issed vide the impugned orde r dated 16.11 . 2024, observing that the learned court had given as many a s 15 effective opportunities to the petition e rs, yet the objections had no t been presse d . It was further rightly obser v ed by the learned court belo w that the decree under execution is dated a s far back as 11.6.2012, yet th e decree-hold e r is unable to enjoy the fruit s thereof. The relevant part o f order dated 16.11.2024, is as under: -

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“5. This Court has heard the riv a l contentions of the parties an d perused the file carefully and is of the view that this is not a fit case to allow the present ap p lication. The court had give n sufficient effective opportuniti e s to the applicant to press hi s objections as a third party, pre c isely 15 opportunities, and stil l the objections were not pressed. Then, considering the fac t that, the present execution peti t ion (the judgment in which wa s

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passed ion 11.06.2012) is pendi n g since 2016 and that almost 8 years have elapsed but still th e decree holder has not availe d the fruits of decree, allowing the present application is no t j ustified. This will amount to g r oss injustice for decree holder. Also, sufficient opportunities were given to the presen t applicant earlier but he did n o t press his objections and tha t now, when the same are dismis s ed being not pressed, he want s to press the same by movin g this present application. Thi s appears to this court nothing b ut a tool to delay the presen t execution petition.

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6. Also, it is pertinent to menti o n here the law laid down by th e Hon'ble Apex Court in Rahul S. Shah Vs. Jinendra Kumar Gandhi (2021 6 SCC 418) w herein it was held that th e executing Court must conclud e the execution cases within a period of SIX MONTHS. Hence , it is the mandate of law tha t decree must be executed withi n six months and in the presen t case, allowing the present a pplication will frustrate tha t mandate. When the applicant had 15 effective opportunities, he did not use them effectiv e ly and when the same wer e dismissed being not pressed, the present application wa s moved. Hence, even the princip l es of equity do not warrant th e admission of present applicatio n as no one can take advantag e of his own wrong and that dela y defeats equity.

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7. Also, the proper remedy for o rder dated 13.09.2023 is to fil e revision before proper authorit y under section 115 of CPC an d not the present application. A l so, order dated 19.09.2023 d o not fits into any category of o rders mentioned in Rule 1 o f Order XLIII CPC and thus it is not an appealable order but a revisable one.”

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Ld. Counsel for the peti t ioners is unable to dispute o r

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controvert the above said facts and findi n gs. In view of the above, n o ground is made out to interfere in the im p ugned order. Present petitio n accordingly s tands dismissed.

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Pending application(s) if a ny also stand(s) disposed of.

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07.01.2025 (Nidhi Gupta) Sunena Judge Whether speaking/reasoned Yes/No Whether reportable Yes/No

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Juhruddin and Other v. Abdul Rajjak and Other

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Juhruddin and Other v. Abdul Rajjak and Other

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