FATEH CHAND Vs. NAIB SINGH

JUDGEMENT

(1.) THIS revision is directed against the order dated June 12,1993 of the executing court whereby petitioner's application for framing an issue in the execution application was dismissed.

(2.) FATEH Chand, petitioner herein filed a suit against Naib Singh, respondent, son of Sahib Singh son of Gudha Singh resident of village Gidh Ghoda Tehsil and District Bhatinda for recovery of money. The suit was contested by Naib Singh and was finally decreed on November 11, 1985. Appeal filed by Naib Singh against the judgment and decree of the trial Court was dismissed by the appellate court at Faridkot. Meanwhile, the decree holder took out execution and the property was attached on February 1, 1986. The execution which was taken out in the court at Giddarbaha within the jurisdiction of Faridkot Sessions Division was transferred to the executing court under the jurisdiction of Sessions Division Bhatinda. Before the executing court in the jurisdiction of Sessions Division Bhatinda/Ajaib Singh son of Sahib Singh resident of Gidh Ghoda filed objection petition wherein he stated that his l/5th share in land measuring 89 Kanals 4 Marias has been attached for the recovery of decretal amount and the decree was against Naib Singh S/o Sahib Singh and not against him. He further stated that there was no person by the name of Naib Singh son of Sahib Singh. In the situation, it was prayed that attachment be lifted. Faced with the above situation, Fateh Chand decree holder moved an application praying that an issue be framed, "Whether Naib Singh J.D. and Ajaib Singh Objector is one and the same person or not. - This application was dismissed by the executing court by order under revision.

(3.) AFTER hearing learned counsel for the parties, I am of the opinion that the contention has merit. It is the admitted case of the judgment debtor that Sahib Singh has no son named Naib Singh through he has a son named Ajaib Singh who is the objector himself. If there existed no person by the name of Naib Singh son of Sahib Singh, the suit would have proceeded ex parte or the defendant could never have been served but the fact is that the suit was not only contested but an appeal also was taken against the judgment and decree of the trial court. Thus, it seems that there is a person known as Naib Singh son of Sahib Singh and having regard to the stand taken by the decree holder and reference to the jamabandi, placed on the record, it is clearly borne out that Naib Singh son of Sahib Singh is also known as Ajaib Singh son of Sahib Singh i.e. Ajaib Singh alias Naib Singh son of Sahib Singh. It is, however, not necessary to record a firm finding in that behalf as it is for the executing court to do so after affording opportunity to the objector and the decree holder to lead evidence. I am of the opinion that the executing court was not right in coming to the conclusion that such a question could not be gone into by it and that it should be got clarified from the court of Subordinate Judge at Giddarbaha. Once a decree has been transferred for execution, all questions incidental or objections to the execution of the decree have to be decided by the executing court. This does not and even cannot mean that it would amount to going behind the decree. If the executing court comes to the conclusion that Naib Singh and Ajaib Singh is one and the same person, the decree will be executed as it is and if it comes to the conclusion that they are two different persons, property of Ajaib Singh has to be released, as the property of a third party cannot be attached in execution of a decree. Consequently, I allow the revision petition, set aside the impugned order and direct the executing court to frame an issue as prayed for by the petitioner and decide the same as expeditiously as possible after affording opportunity to the parties to lead evidence in accordance with law. No costs.