Executing Court Duty Bound To Adjudicate Claims Even By Non-Parties U/S 47 CPC: J&K&L High Court

Shedding light on the scope of execution proceedings, the High Court of Jammu & Kashmir and Ladakh has held that an 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. “… No separate suit can be filed to determine these questions. Even a question whether any person is or is not the representative of a party is also to be determined by the Executing Court”, the court emphasised. Justice Sanjay Dhar made the above observation while setting aside an order which had refused to consider objections raised by two brothers resisting the execution of a decree passed in a 1993 civil suit. Background of the Case The case originated from a civil suit filed in 1993 by one Kamlesh Singh and another, seeking a decree of permanent prohibitory injunction against Mst. Janu, mother of the petitioners, and one Sain Mohammad, her second husband. The suit concerned an agricultural land and the trial court decreed the suit in favour of the plaintiffs. After the decree, Mst. Janu passed away. Her sons, the petitioners, Ghulam Haider and another approached the trial court seeking to set aside the 1993 decree on the grounds that summons had never been served and that the counsel's signatures were forged. Because the decree was not ex parte, the trial court dismissed their application. Subsequently, the decree-holders initiated execution proceedings. The petitioners filed detailed objections asserting that they were not claiming the suit land as heirs of their mother, but independently, as male lineal descendants of a protected tenant Mohd. Khan, their paternal uncle, from whom they said they inherited tenancy rights under Sections 67, 68 and 68-A of the J&K Tenancy Act. However, the Executing Court rejected their objections holding that it could not “go behind the decree,” prompting the revision petition before the High Court. Court's Observations: Justice Dhar began by analysing the nature of the petitioners' claim and noted that the petitioners asserted a right to the suit land “not through their mother Mst. Janu … but in their independent capacity being male lineal descendants of Mohd. Khan, who as per the revenue record was a protected tenant.” The Court then turned to Sections 47 and 50 CPC to determine whether the Executing Court was obliged to examine their claim and emphasized that all questions arising between the parties to the suit or their representatives and relating to execution, discharge, or satisfaction of the decree must be determined by the Executing Court and not by a separate suit. Even questions regarding whether a person is the representative of a party must be adjudicated by the Executing Court itself, it clarified. Justice Dhar stressed, “From a perusal of the aforesaid provision, it is clear that all questions that arise between the 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.” Turning to Section 50 CPC, the Court reiterated that a legal representative is liable only to the extent of the deceased's property that has come into his hands. The Court then extensively relied on Supreme Court precedents, including Bhanwar Lal v. Satyanarain (1995) and Jini Dhanrajgir v. Shibu Mathew (2023), observing that Order 21 Rules 97–103 constitute a complete code enabling the executing court to adjudicate inter se claims even by third parties. Justice Dhar highlighted the legal principle by recording, “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.” The Court further noted that while executing courts cannot travel beyond the decree, they must decide questions relating directly to the execution, discharge or satisfaction of the decree and the petitioners' claim undeniably fell in that category, because they claimed independent rights over the suit property, and their claim directly affected whether the decree of permanent injunction could be enforced against them. Significantly, Justice Dhar rejected the Executing Court's reasoning that the petitioners had failed to set aside the 1993 decree, observing, “Merely because the petitioners have failed to get the judgment/decree dated 30.04.1993 set aside … the petitioners who were not party to the suit are well within their rights to agitate their claim … in their independent capacity and their said claim was required to be determined by the learned Executing Court.” By refusing to do so, the Executing Court, the High Court held, “failed to...

Executing Court Duty Bound To Adjudicate Claims Even By Non-Parties U/S 47 CPC: J&K&L High Court

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