M.M.KUMAR, J. - (1.) THIS petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity 'the Code') is directed against the order dated 25.4.2003 passed by the learned Additional District Judge, Fatehgarh Sahib, upholding the order of the Additional Civil Judge (Senior Division), Amloh dated 22.7.2000. The Civil Judge had dismissed the objections of the JD- petitioners in the execution application filed by the decree-holder- respondents.
(2.) IN 1991 one Sadhu Singh suffered a decree in favour of the JD-petitioners in respect of the land in dispute. The aforementioned decree was successfully challenged by the decree-holder-respondents and on 30.1.1999, the trial Court vide his judgment and decree setside the collusive decree suffered by Sadhu Singh. In the execution application filed by the decree-holder-respondents, objection raised by the JD-petitioners is that in fact Sadhu Singh had nothing to do with the land and the land was owned by one Harnam Kaur, who had executed a valid will date 21.2.1993 in their favour. The aforementioned objection raised by the JD-petitioners has been rejected on the principal ground that the will dated 21.2.1993 did not see the light of the day till the filing of these objections. The operative part of the order passed by the learned Additional District Judge reads as under :- "It is worthwhile to mention here that the amended Code of Civil Procedure came into force w.e.f. 1.7.2002. In the amended Code of Civil Procedure sub- rule (2) of Rule 58 of Order 21 stand deleted and omitted. According to the amended Code of Civil Procedure, the objections were to be considered only if they are filed within a reasonable time of the first attachment or where the objector pleaded that he acquired the title to the property under attachment subsequent to the late of first attachment. The present objections u/O 21 Rule 58 of CPC were filed by the appellants when the property under attachment was already ordered to be put to auction and dates were fixed by the Executing Court for the sale of the land under attachment, meaning thereby that the objections were not filed by the present appellant within the reasonable time of first attachment of the property of Sadhu Singh. Nor they have claim that they acquired the title qua the land under attachment subsequent to the attachment of the property. They claimed themselves to be owners of the property under attachment on the basis of will dt. 21.2.1993. The authorities on which the ld. counsel for the appellants has relied upon are not applicable on the amended Code of Civil Procedure which came into force w.e.f. 1.7.2002. These objections were filed by the appellants with clever designs to delay the execution unnecessarily. The respondent No. 1 and 2 are seeking execution of the decree of maintenance passed in their favour. They have not been paid yet a single penny by the respondent Sadhu Singh/JD. I failed to understand that the appellants who are unmarried are claiming themselves to be living separately from their father Sadhu Singh. So one thing has become crystal clear on the file that the objections were filed by the appellants with malafide design to delay the execution proceedings unnecessarily. So in view of facts and law discussed above in detail, I find no merits in the appeal, same stands dismissed. The parties are ordered to appear before the ld. Executing Court on 9.5.2003. Appeal file be consigned to the record room. Lower Court file be sent back. Ahlmad is directed to send the file complete in all respects well within time." Mr. R.S. Chauhan, learned counsel for the JD-petitioners has argued that the findings of the Courts below suffer from patent illegality and there is no evidence to prove the fact that the will had seen the light of the day for the first time. According to the learned counsel once Sadhu Singh is shown not to be the owner of the property, the collusive decree suffered by him in 1991 or its setting aside by the Court vide judgment and decree dated 30.1.1999 is of no consequence.
(3.) AFTER hearing the learned counsel at some length, I am of the considered view that the findings recorded by both the Courts below do not call for any interference because once the JD-petitioners have once taken advantage of a collusive decreed suffered by Sadhu Singh, then a new plea cannot be set up by them on the basis of the will dated 21.2.1993. Had it been a fact that Harbans Kaur was the owner of the property, then JD-petitioners would have got the mutation of inheritance sanctioned on the basis of the will after the death of Harnam Kaur. There is nothing on record to show as to how Harnam Kaur was the owner of the property. Therefore, the objections filed by the JD-petitioners have been rightly dismissed by the Courts below.;