- (1.) The present revision petition has been filed against the order dated 28-5-2005 passed by the learned Civil Judge (Sr. Divn.), Jind, vide which the objection petition filed by the State of Haryana- petitioner herein has been rejected.
(2.) The decree-holder Smt. Lajwanti filed a suit for possession claiming herself to be owner of land measuring 12 Kanals 5 Marlas. It was the case of the plaintiff-decree holder that the petitioner herein had taken possession of her property without her consent. As the State failed to give back the possession of her land, a notice under section 80 CPC was served on the petitioner-State calling upon it to hand over the possession of the land. Since the State had failed to take any action on the said notice, the suit for possession was filed which was dismissed by the learned trial Court on 22-12- 1993. However, the appeal filed by the plaintiff was allowed by the learned District Judge, Jind, vide order dated 19-12-1997. The operative part of the order passed by the learned lower Appellate Court reads as under:- "7. In view of the above discussion, it has to be held that the trial Court wrongly dismissed the suit of the appellant. Copy of Jamabandi Ex.P.1 clearly shows that it is Lajwanti appellant who is the owner of the suit land. It was not disputed by the learned Government pleader either that in the revenue record, the suit land is recorded in the ownership of the appellant. His contention, however, was that the respondent-State had acquired it. As stated above, the case for the appellant is that on merits also, the respondent-State had failed to prove that the suit land had been acquired. In this connection, it may be noted that it was for the respondent-State to have got proved the award regarding the acquisition of land, if any such award existed. But, as it is, no such award was got proved. The respondent-State did not produce even any certified copy of such award. However, learned Government pleader referred to Ex. D.1 which, it may be stated, is only an attested copy of an endorsed photo-copy of the award. In Dera Baba Lathurian and another v. The State of Punjab, 1990 PunLJ 291, copy of certified copy had been produced in evidence after attestation put by the General Assistant to the Deputy Commissioner thereon. The Hon'ble High Court held that copy of certified copy put into evidence after it is attested to be true copy by General Assistant to Deputy Commissioner cannot be received in evidence. In the case in hand, Ex.D.1 is not even copy of certified copy. As stated above, it is only an attested copy of an endorsed photo-copy of the award. The same, therefore, cannot be read into evidence and has to be ignored. In so far as Ex.D.4 is concerned, the same is also only a photo-copy of the mutation. It is neither certified nor even an attested one. Even otherwise, this document only shows that a mutation in respect of the suit land was entered into in favour of the Haryana State but it was never decided. In fact, it is mentioned at the top of Ex. D.4 that the mutation is still pending for decision. (INTKAL ZAIR FAISLA HAI). Thus even this document cannot be of any help to the respondent- State in contending that they had acquired the suit land. That being the position, it cannot be held simply on the basis of notifications under section 4 or section 6 of the Land Acquisition Act that the suit land stood acquired by the respondent-State. 8. As stated above, it was not disputed by the respondent-State either that it was the appellant, Lajwanti, who was original owner of the suit land. Copy of jamabandi Ex.D.1 shows that even during the year 1984-85, the suit land continued to remain in the ownership of the appellant. The plea of the respondent-State that they had acquired the suit land in the year 1956 has not been proved. That being so, it is clear that the appellant Lajwanti, continued to remain owner of the suit land, and as such, she is entitled to get possession thereof from the respondent-State on the basis of the ownership in respect thereof. The appeal is, therefore, accepted. The impugned judgment and decree of the learned trial Court are set aside and a decree for possession of the suit land in favour of the appellant-plaintiff on the basis of being its owner is passed. The appellant shall also be entitled to the costs throughout. Decree-sheet be prepared accordingly and file be consigned to the record room." The Regular Second Appeal filed by the State against the said order was dismissed and the Special Leave Petition also met with the same fate.
(3.) In the execution application, objections were filed by the petitioner-State herein alleging that the decree was obtained by the decree-holder by playing a fraud on the State as she failed to disclose that in pursuance to the acquisition of land, an award was passed and thereafter the possession was taken and thus in view of this it was claimed that the decree obtained by fraud is nullity and, therefore, was not executable. The learned executing Court dismissed the objection petition by observing as under:- "19. As a matter of fact, this Court is only the executing Court and has to execute the decree passed by the Court of learned District Judge, Jind, which has been upheld upto the Hon'ble Supreme Court of India. It is the settled proposition of law that the executing Court cannot go behind the decree. The executing Court has no jurisdiction to modify or vary the decree unless it is shown that the decree is without jurisdiction or is otherwise void. It is also the bounded duty of the executing Court to execute the decree and merely because frivolous and vexatious objections are filed with the intention to delay and defeat the execution of the decree. It is also further settled proposition of law that under Section 47 of the CPC, the execution of the decree can only be avoided when it is found to be without jurisdiction, void ab initio or nullity or inexecutable being passed in ignorance of law or being rendered inexecutable by new enactment of law. The decree has to be executed if passed by a competent court of jurisdiction and attained finality. The decree cannot be defeated merely by raising the technical objections. It has also been observed by the Hon'ble Punjab and Haryana High Court that the executing Court cannot go behind the decree. A decree in sum and substance is the declaration of right or liability conferred by the substantive law because the decree holder has been able to prove all the facts which constitute that right. 20. With the above observations and discussion and after placing the reliance upon all the authorities referred by the learned counsel for the decree- holder, the objection petition has been filed in order to prolong or delay the execution proceedings. It is false and frivolous and is devoid of merits. This Court has considered all the submissions made by the learned Govt. Pleader for the objectors/JDs but have been found to be untenable, without any force and merits. While concurring with the arguments advanced by the learned counsel for the decree holder, the objection petition being devoid of merits stands dismissed with no order as to costs.";