DINESH MEHTA,J. - (1.) The petitioners have solicited this Court's intervention in its supervisory jurisdiction under Article 227 of the Constitution of India, being aggrieved of the order dated 01.08.2016 passed by learned Senior Civil Judge, Churu - the Executing Court, whereby their application dated 07.04.2016 for framing the issues and leading evidence in execution case has been rejected.
(2.) The core question, on which the rival counsel addressed this Court is; "as to whether framing of issues and recording of evidence is quintessential to the adjudication of an objection petition, in the course of execution proceedings ?"
(3.) Though the facts are copious and history is checkered; but for the purpose of deciding the issue involved in the instant writ petition, only a handful of them are relevant; which have been set out here under:- 3. 1 Petitioners and the Respondents (Trustees) descend from a common ancestor Ganeshdas, who owned and possessed certain properties under various 'pattas' issued in the names of his ancestors. The petitioners have claimed their rights, interest and title in the ancestral property, which in its entirety has been placed under a Trust. 3. 2 The dispute dates back to November, 1965, since formation of a trust namely Chimnaram Mantri Charity Trust, which was formed by way of a trust deed dated 10.11.1965, duly registered before the Sub-Registrar, Churu. At the time of formation of the Trust, various properties belonging to the family including their common/respective ancestors etc. were subsumed in the list of Trust property and the right, title and interest therein were settled in the trust, by way of a Trust Deed. 3. 3 The plaintiff - Respondent No.1 - Chimnaram Mantri Charity Trust and other plaintiffs being trustees of the trust had been managing and maintaining various properties such as Gaurishankar and Saligram ji Temple, Dharmshala, Chhatariyas including the disputed property. With a view to take care of the temple, one Nanagram was appointed as a 'Pujari' and was allowed to stay in two 'kotadies' underneath the 'chhatries'. When said Nanagram - the original 'Pujari' died on 20.2.1977, the plaintiffs wanted to deploy someone else as 'Pujari' of the temple, when the son of said Nanagram, defendant No.1 objected to it and started performing the 'Pooja'/worship in the temple. When asked to vacate, the defendant No.1 not only refused to vacate the premises but also transferred large chunk of the land to defendant No.4 and 5. 3. 4 Faced with such situation, the plaintiffs filed a suit for cancellation of the sale deeds dated 16.4.1979 and 21.6.1979, executed by the defendant No.1 and for his eviction. The said suit filed by the plaintiffs came to be decreed by Civil Judge, Churu vide a judgment and decree dated 28.08.1993 whereby the sale deeds executed by defendant No.1 were annulled and a decree of eviction was issued against the defendants. 3. 5 It is noteworthy that the defendants being legal representatives of original 'Pujari' Nanagram preferred first appeal before the District Court and second appeal before this Court, which were dismissed and the original decree dated 28.08.1993 had become final. 3. 6 During the pendency of the execution proceedings even Jagdish Prasad and the person claiming possession of the property lodged objections, which were rejected and attained finality. The Execution Second Appeal, preferred by them were rejected by the Court, vide its order dated 19.07.2011 and writ petition filed by Jagdish Prasad was rejected vide Judgment dated 04.12.2015 passed in SB Civil Writ Petition No.8862/2013 (Jagdish Prasad v. Chimnaram Mantri Trust). 3. 7 However, the execution remained pending, during which objections came to be filed by the petitioners, being descendants of Ganesh Dasji and Shiv Lalji stating inter alia claiming that they are entitled to half share of the entire property including the disputed property, being legal representatives of Ganesh Dasji and Shiv Lalji. It was stated in the objection petition that the land and other property belonging to them/ their family had been illegally placed/taken in the hotchpot of the trust, for which neither Ganesh Dasji nor his successor had ever given consent. In the detailed objection filed under Order 21, Rule 97 of Code of Civil Procedure, the petitioners - objectors contended that the judgment and decree dated 28.08.1993 had been illegally obtained, ignoring their right, interest and title. It was also contended that they are in actual possession of the property, including the temple and 'kotadies' and that defendant No.1 being son of said Nanag Ram had been authorized by them to act as 'Pujari' of the temple and that the actual possession of the property through said 'pujari' rests with them. The objectors - petitioners in their application prayed as under:- 3. 8 The objections aforesaid came to be filed by the petitioners on 8.5.2013, in the execution petition filed by the Decree Holders, way back in the year 2005. The reasons for delay in obstructing the execution as portrayed in the application were that they (petitioners) came to know about the passing of the judgment and decree and pendency of the execution only on receipt of a copy of the reply to the application, seeking temporary injunction (TI No.31/2012), in a suit for permanent injunction, filed by them. On perusal of the said reply, the petitioners said, they found a reference of the judgment and decree dated 28.08.1993 and further that the same has attained finality. 3. 9 During the pendency of the execution petition, the petitioners - objectors moved an application dated 7.4.2016 and prayed that the objection petition be decided after framing of issues and recording of evidence. The said application preferred by the petitioners came to be rejected by learned Executing Court vide its order dated 01.08.2016, observing as under:- 3. 10 While rejecting the application of the petitioners with above observation, the learned Court below opined and held that the objections under consideration had been lodged by the petitioners on 8.5.2013; if the petitioners were of the view that it is imperative or necessary to frame issues and lead evidence, a request to this effect ought to have been made earlier. The Executing Court, with concern noted that on the contrary, the objectors have been seeking adjournments for arguing the objection petition.;