- (1.) This revision petition is directed against the order dated 15.04.2011 passed by the executing Court on an application filed by the petitioner under Section 39(4) of the Code of Civil Procedure, 1908 (in short 'the CPC'). The brief facts of the case are that the respondent-Kartar Singh filed civil suit No. 63 against the petitioner (since deceased) for permanent injunction restraining her from selling, transferring or otherwise using and misappropriating the movable and immovable property inherited by her alongwith Lakshmi Bai, her mother-in-law, from her husband, Pritam Singh, including 2000 g.ms. of gold ornaments, eighty thousand rupees, lying in different banks and lockers and house No. 186-C (Prita Ghar) Model Town, Karnal. In the prayer clause of the said plaint, it was alleged that "it is, therefore, prayed that a decree for permanent injunction restraining the defendant No. 1 from selling, transferring or otherwise using and misappropriating the movable and immovable property mentioned in the heading of the plaint be granted in favour of the plaintiff with costs". The said suit was decreed in favour of the respondent-Kartar Singh exparte on 10.03.1983 and the decree reads as under:- "It is ordered that an exparte decree is hereby passed in favour of the plaintiff and against the defendants restraining the defendant No. 1 from selling or transferring the = shares of the movable and immovable property inherited by her along with her mother-in-law Luxmi Bai from her husband decreased Pritam Singh with costs."
(2.) The petitioner, instead of filing application under Order 9 Rule 13 of the CPC or filing an appeal against the exparte judgment and decree, chose to file suit at Karnal for declaration that the decree dated 10.03.1983 is illegal being fraudulent. The said suit is pending at Karnal. However, the respondent-Kartar Singh also filed another civil suit No. 484 at Ludhiana, for seeking declaration on the basis of the decree dated 10.03.1983. The proceedings in the said suit have already been stayed on an application filed by the petitioner under Section 10 of CPC.
(3.) While proceedings were pending, the respondent filed application for execution under Order 21 Rule 32 CPC alleging violation of the decree at the hands of judgment debtor/petitioner. According to learned counsel for the petitioner, there is only one application for execution available on record filed in the year 1983 and according to him, it does not spell out the manner of disobedience on the part of the petitioner. Be that as it may, the petitioner also moved an application under Section 39(4) of the CPC in which prayer was made for dropping the execution proceedings. The said application was contested by the respondent by filing reply and ultimately it has been dismissed by the executing Court by way of the impugned order. The reasons given by the executing Court while dismissing the application reads as under:- "After taking into consideration the submissions made by both the sides and going through the file with their kind assistance, I am convincing with the submissions made by learned counsel for the respondent/decree holder. I am of the considered view that said decree dated 10.3.83 was never challenged by Sukhbir Kaur or Gurmit Singh i.e. by filing appeal or revision or review and application under Order 9 Rule 13 CPC to challenge this decree which has become final and conclusive and could not be challenged in any suit in any court nor in this execution and this court has no jurisdiction to go against this decree. I am also of the considered view that applicant Gurmit Singh is contesting with malafide motive just to delay the decision. I am of the considered view that the executing court is not the court of appeal nor these proceedings of the suit can be stopped. I am also of the considered view that this court cannot go beyond the decree nor can challenge, amend, alter or nullity it even if the decree is wrong, erroneous of law and facts. The applicant/JD has failed to convince the court that the evidence adduced by the DH was false. I am convinced with the submissions made by learned counsel for the decree holder. On the other hand, I am not convinced with the submissions made by learned counsel for the applicant/JD. Accordingly, the application under consideration stands dismissed being devoid of merits.";