Punjab and Haryana High Court: Manjari Nehru Kaul, J., while dealing with a revision petition for setting aside the order passed by the Civil Judge in Execution Petition held that the petitioner was unable to bring any material that showed that other co-owners were not agreeable to take possession.
The petition was filed for setting aside the order dated 23-05-2022 whereby objections under Order 47 read with Section 151 of the Code of Civil Procedure, 1908 preferred by the petitioners were dismissed.
Facts:
The suit land is in the joint ownership of respondents and other co-owners as per the entries recorded in the ownership column of the jamabandi for the year 2012-2013. There has never been any partition of the suit land.
Arguments:
The counsel for the petitioner contended that the impugned order passed by the Civil Judge was a manifest error of law. Further, he contended that since the suit land was jointly owned, the respondents cannot seek possession of land beyond the extent of their respective shares. It was also contended that there was a non-compliance of Order 1 Rule 8 of the Code by the trial Court while passing the decree, where there were a large number of persons involved having common interest in a suit and the respondent did not take permission from Court to act on behalf of others. Hence, the decree cannot be executed.
Issues:
Whether one of the co-owners acting on behalf of others constitute a proceeding that has to follow Order 1 Rule 8 of the Code?
Whether an application under Order 47 read with Section 151 can be entertained where the consent of co-owners has been assumed?
Whether one owner out of the co-owners seek possession of the entire joint land as an agent of the other co-owners?
Observations and Analysis:
The Court relied on India Umbrella Mfg. Co. v. Bhagabandei Agarwalla, (2004) 3 SCC 178 and Mohinder Prasad Jain v. Manohar Lal Jain, (2006) 2 SCC 724 and held that “any one owner out of the co-sharers can seek possession of the entire joint land. Such co-owner would do so on his own behalf, in his own right and as an agent of other co-owners. The consent of the other co-owners would be assumed to have been taken unless it is shown to the contrary that co-owners were not agreeable and despite their disagreement, a suit had still been instituted.”
The Court also noted that the petitioner has failed to bring to the notice any material to substantiate his claim that co-owners were not agreeable to take possession.
The Court observed that the scope of interference in execution proceedings is very limited and the Court could not go behind the decree.
[Siriya v. Tulsi Puri, 2022 SCC OnLine P&H 1872, decided on 21-07-2022]
Advocates who appeared in this case :
Mr. Munish Kumar Garg, Advocate, for the Petitioner.
