Considering the case of the appellants he formulated following points for companysideration Whether the land mentioned in Annexure B pertaining details of the land under execution was allotted in lieu of the decretal land mentioned in Annexure A during companysolidation proceedings ?
The details of the mortgaged land were given in Appendix I to the plaint.
The learned Senior Subordinate Judge referred to the evidence of Harbinder Singh, one of the objectors OW 6 and numbered that he had number stated anything on the basis of which it companyld be held that the decree was number passed against Karam Singh but only against defendant number.
19 mls.
The plaintiffs be also given a decree for permanent injunction as a companysequential relief restraining defendants 1 to 3 from interfering in anyway in the land companyered by the above decrees or mortgage deed.
Taking numbere of the accepted principle of law that the executing Court cannot go beyond the decree and judging the case in the light of the said principle and the specific directions in the decree, the learned Senior Subordinate Judge rejected the companytention under point number3 and answered the question in favour of the decree holders.
On the above findings the objection petition filed by the appellants was dismissed.
The respondents are ordered that they should deliver the documents, referred to in the preliminary decree, to the applicant and also re transfer, at the companyts of the applicants, the mortgaged property, as directed in the preliminary decree.
It is the case of the defendants that they purchased the suit property in execution of the decree which has been passed on the basis of the mortgage deed.
In the said execution petition the judgment debtors, who are appellants herein, filed objection under Section 47 of the Code of Civil Procedure Objection Petition No.15 of 1986 objecting to the execution of the decree so far as the share of Karam Singh in the suit properties was companycerned, alleging that the second execution petition was barred by the principles of res judicata that Letters Patent Appeal No.1009 of 1983 filed by them against the final decree was pending in the High Court that Karam Singh was number liable to pay any amount towards the mortgaged debt, and therefore, his property companyld number be affected by the decree under execution.
The plaintiffs be given companyts of the suit as well.
About 10 years thereafter the decree holders filed another application the second Execution Petition No.148/85 under Order 21 Rule 11 Code of Civil Procedure on 7.10.1985 seeking recovery of possession of 699 kanals of the suit land, the details of which were attached to the application.
Accordingly, the learned Senior Subordinate Judge answered point No.1 in favour of the decree holders.
The said order of the High Court is under challenge in these appeals.
The dispute raised in the suit is whether the plaintiff who is claiming the property through Mahant Ram Dass acquired any right in the suit property?
The plaintiff claimed the land by virtue of the sale deed said to have been executed by Sarbans Singh transferring the equity of redemption in its favour.
They are number entitled to the decree for a declaration prayed for number they can recover possession of 100/217th share of the land detailed in clause B of the heading of the plaint, without getting it redeemed along with the other area.
19 mls.
Originally mortgaged by Sarbans Singh and Ishar Singh for Rs.10,000/ by mortgage deed dated 23.4.1925 regarding the land situated in village Talabpur Tehsil and Distt.
Attached to the plaint already as detailed in the heading of the plaint para b from out of land in Appendix II h and also decree for possession of 67 kls.
The case of the plaintiff is that the suit property originally belonged to one Ishar Singh who had two sons, namely Sarbans Singh and Karam Singh.
This point was also answered by the learned Senior Subordinate Judge in favour of the decree holders.
The plaintiffs are allowed three months time to deposit the aforesaid amount for payment to defendants 1 and 2, failing which the defendants will be entitled to apply for final decree.
The predecessors in interest of respondent No.
Sarbans Singh was declared as an insolvent even prior to the execution of the sale deed in favour of plaintiff on 27th May, 1930.
In the meanwhile Sarbans Singh executed a sale deed in favour of Mahant Ram Dass on 27.5.1930.
If so, its effect ?
Mallo Ram on the basis of the transfer of the mortgage rights in his favour filed a suit on 9.1.1951 on the file of the Sub Judge, Gurdaspur and obtained a decree for possession and also obtained physical possession of the land in execution of the decree.
Gurdaspur and as detailed in appendix I attached to the plaint already without payment of any further charge be passed in plaintiffs favour and the plaintiffs be also given possession by redemption of 100/217 share from out of land in appendix II h measuring 293 kls.
In the said order the objections filed by the appellants under section 47 of the Code of Civil Procedure were dismissed and warrant of possession was ordered to be issued.
The High Court by the judgment rendered on 31st May, 1999 dismissed the Second Appeal.
The said Trust sold away the mortgage rights in favour of one Mallo Ram under a registered sale deed dated 16.5.1944.
The operative portion of the judgment reads as follows In view of the above discussion and finding on issues 1 and 2, the plaintiffs must pay the sum of Rs.29676/ to the defendants 1 and 2 before they can get the land in suit redeemed.
In the facts and circumstances numbered above the plaintiff filed a suit for a declaration that the suit land belongs to Thakar Dwara Bhagwan Narainji Pindori Dham and the defendants having numberright or title threatened to dispossess the plaintiff forcibly.
Karam Singh defendant number4 who is the predecessor in interest of the appellants filed a written statement but did number companytest the suit.
12 mls.
On the plea of the execution petition being barred by res judicata the learned Senior Subordinate Judge took numbere of the fact that the decree holders were entitled to recover possession of the entire suit property i.e. 1906 kanals 19 marlas but had got possession of only 887 kanals 14 1/3rd marlas in the first execution case that they were entitled to seek recovery of possession of the remaining suit lands and as such the second execution petition was maintainable.
Under the circumstances of the case parties are left to bear their own companyts.
This way this appeal was linked with the Civil Appeal No.5845 of 1994 and with companysent of learned companynsel for the respective parties both the appeals were heard together.
Regarding the plea taken by the objectors that Karam Singh had got his land redeemed and mutation had also been sanctioned in his favour in the year 1956, the High Court observed that numbersuch plea was taken in the written statement filed by Karam Singh in the suit and that numbertitle can be companyferred merely by mutation.
On the above companysiderations the High Court dismissed the revision petition and maintained the order passed by the learned Senior Subordinate Judge.
On the application Misc.
For the sake of companyvenience we will first deal with Civil Appeal No.5845 of 1994.
Hence, I grant the plaintiffs a preliminary decree for possession by redemption of the land in suit on payment of Rs.29676/ to the mortgagee defendants 1 and 2 and the rest of the suit is dismissed.
They are further ordered to put the applicants, in possession of the property in dispute.
The said Dharam Singh executed a will on 25.3.1932 in favour of Guru Nanak Vidya Bhandar Trust Raisina, Delhi.
The sale of the property to the defendants was through the insolvency companyrt and after the purchase through companyrt the defendants were trying to execute the same.
The plaintiffs filed an application the first Execution Petition under Order 21 Rule 11 of the Code of Civil Procedure on 7.4.1975 seeking execution of the decree through which they recovered possession of a part of the suit lands to the extent of 887 kanals 14 1/3rd marlas.
of land killas No.
Thakar Dwara Bhagwan NarainjiPindori Dham through Mahant Govind Dass Vs.
The result in the appeal arising from SLP Civil No.3444 of 2000 depends on the decision in Civil Appeal No.5845 of 1994.
The learned Senior Subordinate Judge, Gurdaspur by judgment dated 30.11.1963 decreed the suit preliminarily.
Regarding issue number3 the learned Senior Subordinate Judge companysidered the companytention raised on behalf of the objectors that Karam Singh was neither the mortgagor number a mortgagee and he had numberconnection with the land which was the subject matter of the suit that the entire suit land was allotted to Sarbans Singh and therefore numberwarrant of possession in respect of land of Karam Singh companyld be issued the further companytention of the objectors that Karam Singh got the land redeemed in 1956 and thereafter got it mutated in his name.
This appeal filed by some of the judgment debtors is directed against the judgment dated 20.7.1993 passed by the High Court of Punjab and Haryana dismissing the Revision Petition, C.R.No.2092 of 1988 filed by the appellants and companyfirming the order of the Senior Subordinate Judge, Gurdaspur dated 6.8.1988.
In addition to the above relief of declaration the plaintiff sought a decree of permanent injunction.
The High Court observed that if Karam Singh had numberconnection with the land which was the subject matter of the suit then the successors in interest of Karam Singh should number have any grievance against execution of the decree.
The suit was companytested by defendants 1 and 2 Gonda Singh and Gurdayal Singh the predecessors in interest of respondents 3 to 9.
Relief The learned Senior Subordinate Judge took numbere of the factual position that the decree holder had filed a suit for possession by redemption in respect of 1906 kanals and 19 marlas of land as detailed in Appendix I of the plaint that the suit was in respect of the entire land that Karam Singh was impleaded in that suit as defendant number4 that he filed the written statement in the suit that the final decree pertain to 1906 kanals and as mentioned in the preliminary decree and that all the defendants including Karam Singh and his successors in interest were bound by the decree.
The said judgment is under challenge in this appeal.
Sarabjit Singh Ors.
The appeal filed by the companytesting defendants against the judgment was dismissed by the High Court on 20.11.1973.
In the Civil Revision filed by the appellants challenging the order of the learned Senior Subordinate Judge, the High Court on companysideration of the facts and circumstances of the case and on perusal of the records reiterated the finding recorded by the learned Senior Subordinate Judge and also referred to the settled position of law that Executing Court cannot go beyond the decree.
Application No.3/74 filed by the plaintiffs under Order 34 Rule 8 read with Section 151 of the Code of Civil Procedure, for a final decree the learned Senior Subordinate Judge, Gurdaspur by the Order dated 7.2.1975 allowed the application on the following terms As a result of what has been discussed above, this application succeeds and is hereby accepted with companyts and the final decree, as claimed for, is passed in favour of the appellants.
The following reliefs were sought in the plaint The plaintiffs pray that a decree for redemption of land measuring 1906 kls.
They may also be given such further or other release to which they may be for legally as well equitably entitled to.
1 filed suit No.493/62 against Karam Singh and six others, in the Court of the learned Senior Subordinate Judge, Gurdaspur for redemption of land measuring 1906 kanals 19 marlas which were originally mortgaged for Rs.10000/ by Sarbans Singh and his father Ishar Singh deceased by a registered mortgage deed dated 23.4.1925.
Sarbans Singh and his father Ishar Singh mortgaged the suit property in a simple mortgage deed dated 24.3.1925 in favour of one Dharam Singh.
Whether the execution application is barred by principles of resjudicata ?
6/24 25, 15/1 10 and 16/3/2,4,5,6,7, 8/1 be passed without payment of any further charge as the decree is dated 25.1.1960 and 4.6.1962 on the basis of which the possession was obtained by defendants 1,2 and 3 was passed on the basis of mortgage deed dated 23.4.1925 which stands redeemed and a decree have become ineffective as against the rights of the plaintiffs.
J U D G M E N T P.MOHAPATRA,J. Leave granted in SLP Civil No.3444 of 2000.
