GURBACHAN SINGH Vs. HARCHAND SINGH

JUDGEMENT

(1.) This revision petition is directed against the order of the executing Court declining to execute the decree in the execution proceedings taken out by the decree-holders, inter alia , holding that since symbolical possession has been given, the decree stands satisfied and no second application is maintainable.

(2.) the learned counsel for the petitioners contends that the executing Court has failed to take into consideration even the undisputed facts on the record and has passed the impugned order only on surmises treating the execution application as the second application. It is further contended that the learned executing Court has relied on the judgment reported in Shew Bux Mohata and another v. Bengal Brewries Ltd. and others, 1961 AIR(SC) 137, when in fact neither the facts nor the law. laid down in the said judgment, are in any way relevant to the facts in the present case.

(3.) The learned counsel for the petitioners has submitted the following High Court facts in order to strengthen his contention that the facts have been wrongly stated in the judgment of the executing Court. A suit for possession with respect to 107 Kanals 1 Marla for declaration to the effect that the decree-holders shall be entitled to take the possession after redemption with respect to 79 Kanal 8 Marlas was decreed on 8.9.1975. The petitioners sought execution of the decree vide execution application No. 25 dated 7.8.1984. During the pendency of the said application symbolical possession with respect. to the land in dispute under the said decree was alleged to have been delivered on 22.1.1985. This delivery of the symbolical possession was, accepted in an application dated 26.3.1985. The executing Court on 11.4.1985 recorded that possession has been delivered to the decree-holders and directed that notice be issued to Gurmand Singh Superdar for 10.5.1985. The decree-holders nowhere accepted that the decree having been satisfied, the file be consigned to the record room, nor there is anything on the record to show that the executing Court after applying its mind or otherwise came to the conclusion that the decree stood satisfied. On issuance of notice to Gurmand Singh who admittedly was a surety for the due compliance of the decree in terms of Order 41 Rule 5 of the Code of Civil Procedure, he appeared in Court and filed an application asking as to why he had been summoned in the execution application. In reply to the said application the decree-holder denied the fact of taking of actual physical possession and rather made a prayer that Gurmand Singh being the Superdar/guarantor and surety, in turn be directed to get actual physical possession delivered to the decree-holders from the judgment debtors through the revenue authorities. No doubt the prayer was misconceived but the procedure adopted by the executing Court appears to be contrary to the procedure envisaged by the Code of Civil Procedure. The executing Court appears to have not applied its mind at any point of lime.