Executing Court Cannot Shirk Duty To Decide Objections Of Third Parties Even If They Weren't Party To Original Suit: J&K&L High Court

Reinforcing the duties of executing courts, the High Court of Jammu and Kashmir and Ladakh at Jammu has held that an executing court cannot decline to determine the merits of an objection raised by a person resisting execution of a decree merely on the ground that such objector was not a party to the original proceedings or decree.

A bench of Justice Sanjay Dhar observed that under Section 47 of the Code of Civil Procedure (CPC), an executing court is duty-bound to adjudicate all questions relating to the execution, discharge, or satisfaction of a decree including those raised by persons claiming rights independent of the judgment debtor.

These observations arose out of a revision petition filed by one Ghulam Haider and another, challenging the order passed by the Sub Judge, Batote (the Executing Court). The executing court had dismissed their objections to the execution of a decree obtained by Kamlesh Singh and another, who were the decree holders.

The dispute originally arose from a civil suit for permanent prohibitory injunction filed by the decree holders against Mst. Janu (mother of the petitioners) and one Sain Mohammad, restraining them from encroaching upon certain parcels of land in Batote. The suit was decreed, granting a decree of permanent injunction in favour of the plaintiffs.

After Mst. Janu's death, her sons, the present petitioners, filed an application to set aside the decree, alleging non-service of summons and forgery by the counsel who purportedly represented their mother. However, as the decree was not ex parte, their application was dismissed.

When the decree holders initiated execution proceedings, the petitioners filed objections asserting that their possession over the property was independent of their late mother's rights. They contended that they were protected tenants under the J&K Tenancy Act, having succeeded to tenancy rights from their paternal uncle who had been a protected tenant since the early 1970s. They also submitted that their rights were not derivative of their mother's title but arose independently as male lineal descendants under Sections 67, 68, and 68-A of the Act.

Despite these contentions, the executing court rejected their objections, holding that it could not go beyond the decree. Aggrieved, the petitioners approached the High Court.

Court's Observations:

Justice Dhar, after an exhaustive review of Sections 47 and 50 CPC, observed that the executing court had misdirected itself in law by refusing to decide the petitioners' independent claim. The Court observed,

“All questions that arise between parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, have to be determined by the executing court. Even the question whether any person is or is not the representative of a party must also be determined by the executing court.”

Referring to Section 50 CPC, the Court reiterated that when execution is sought against a legal representative, his liability is confined only to the extent of the deceased judgment debtor's property that has come into his hands.

To explain the true scope of an executing court's jurisdiction, Justice Dhar referred to several Supreme Court precedents like Bhanwar Lal v. Satyanarain (1995) 1 SCC 6, Jini Dhanrajgir v. Shibu Mathew (2023) 20 SCC 76 and Prabhakara Adiga v. Gowri (2017) 4 SCC 97, where the Supreme Court held that decrees of permanent injunction can be executed even against legal heirs of a deceased judgment debtor.

Relying on these authorities, Justice Dhar maintained,

“The Executing Court is bound to adjudicate upon the claim of an objector and record a finding allowing or rejecting the said claim even if the objector was neither a party to the earlier proceedings nor the decree was passed against him.”

At the same time, Justice Dhar cautioned that the executing court's power extends only to issues relating to execution, discharge or satisfaction of the decree and does not include revisiting the merits of the original judgment.

Applying the settled law to the facts, the Court held that since the petitioners were not merely legal representatives of the original judgment debtor but also claimed independent rights in the property as protected tenants, the executing court was obligated to determine their objections on merits.

Justice Dhar observed,

“Merely because the petitioners have failed to get the decree dated 30.04.1993 set aside, rightly so because it was not ex parte in nature, they are still well within their rights to agitate their claim relating to the suit property not in their capacity as legal representatives of Mst. Janu but in their independent capacity.”

He further noted that Section 47 CPC bars the filing of a separate suit on such questions and therefore, the executing court's refusal to examine the objection left the petitioners “remediless,” amounting to failure to exercise jurisdiction vested in it.

Consequently, the High Court set aside the order and allowed the revision petition remanding the matter to the executing court with a direction to adjudicate the petitioners' objections on merits after hearing all parties.

Case Title: Ghulam Haider & Anr Vs Kamlesh Singh & Ors

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