The Punjab and Haryana High Court has reaffirmed that an executing court cannot grant possession to a decree-holder based on unsubstantiated allegations of dispossession. The judgment underscores the necessity of judicial scrutiny, evidentiary record, and procedural fairness in execution proceedings, particularly where the underlying suit is contested and prior execution was withdrawn.
Background & Facts
The Dispute
The dispute arose from a suit for permanent injunction filed by Hari Singh and others (respondents/decree-holders) against Tara Chand and Hari Ram (petitioners/judgment-debtors, the latter now deceased and represented by his legal heirs). The respondents claimed ancestral possession over a property and alleged that the defendants were interfering with their possession and attempting unlawful dispossession.
Key Facts
- The suit property is located in Palwal district, Haryana.
- The respondents filed the suit on the basis of long-standing possession dating back to their ancestors.
- The defendants denied the claim and asserted their own lawful possession.
- The suit was initially dismissed by the Court of Additional Civil Judge (Sr. Divn.), Palwal, on 11.01.2007 (Annexure P-1).
- The First Appeal was partly allowed by the Additional District Judge, Faridabad, on 02.05.2008 (Annexure P-2), restraining the defendants from dispossessing the plaintiffs except through due process of law.
- The Second Appeal (No. 2580 of 2008) was dismissed by the High Court on 02.12.2010 (Annexure P-3), and the Special Leave Petition against it was also dismissed.
- An initial execution petition was filed but withdrawn on 26.07.2017 (Annexure P-4).
- A second execution petition was filed alleging dispossession in 2013, but without specifying any date, month, or manner of dispossession.
- The judgment-debtors filed objections contending the suit was collusive and that the prior execution petition had been withdrawn without any fresh cause of action.
- No evidence, witness statements, or survey reports were submitted by the decree-holders to substantiate the claim of dispossession.
Procedural History
- 11.01.2007: Suit dismissed by Additional Civil Judge (Sr. Divn.), Palwal.
- 02.05.2008: First Appeal partly allowed by Additional District Judge, Faridabad; defendants restrained from dispossessing plaintiffs except by due process.
- 02.12.2010: Second Appeal dismissed by High Court.
- 26.07.2017: First execution petition withdrawn.
- 2018: Second execution petition filed alleging dispossession in 2013, without particulars.
- 13.09.2018: Court of Civil Judge (Jr. Divn.), Hodal, dismissed objections and ordered execution (Annexure P-7).
- 12.10.2018: Warrant of possession issued with police assistance (Annexure P-8).
- 04.12.2018: Second warrant of possession issued (Annexure P-9).
- 20.04.2026: Revision petition heard and allowed by Punjab and Haryana High Court.
The Parties' Positions
For the Petitioners (Judgment-Debtors):
- The suit was collusive and lacked genuine possession claims.
- The first execution petition was voluntarily withdrawn, extinguishing any right to refile without a fresh cause of action.
- No evidence of dispossession was produced; the execution petition contained vague, unsubstantiated allegations.
- The executing court failed to conduct any inquiry, appoint a local commissioner, or record reasons for accepting the decree-holder’s version.
For the Respondents (Decree-Holders):
- No appearance was made before the High Court.
- No written submissions or evidence were filed.
- The respondents were proceeded against ex parte.
Relief Sought
The petitioners sought:
- Setting aside of the orders dated 13.09.2018, 12.10.2018, and 04.12.2018.
- Cancellation of warrants of possession issued with police assistance.
- Restoration of the status quo pending adjudication of the collusiveness claim.
The Legal Issue
The central question was whether an executing court can grant possession to a decree-holder based solely on an uncorroborated, vague allegation of dispossession, without recording evidence, appointing a local commissioner, or providing reasoned findings.
Arguments Presented
For the Appellant/Petitioner
Learned counsel argued that the executing court acted beyond its jurisdiction by assuming possession had been lost without any proof. Relying on Smt. Sushila Devi v. Smt. Kamla Devi, he contended that execution proceedings are not a forum to re-litigate title or possession; they are confined to enforcing the decree as it stands. The withdrawal of the prior execution petition, he submitted, required a fresh cause of action before a new petition could be filed. The absence of any date, manner, or evidence of dispossession rendered the petition legally unsustainable.
For the Respondent/State
No appearance was made by any respondent. No counter-arguments were presented. The respondents were proceeded against ex parte.
The Court's Analysis
The Court observed that while an executing court cannot go behind the decree to question its validity, it is equally bound to ensure that the execution process adheres to the principles of natural justice and procedural fairness. The Court emphasized that the mere averment in an execution petition that the decree-holder has been dispossessed is insufficient to justify the issuance of a warrant of possession.
"The executing Court blindly accepted the version of the decree-holders that they had been dispossessed. The Court did not consider that no date or month of dispossession was given. The executing Court did not deem it appropriate to even appoint a local commissioner to see as to who was in possession. It simply took the averments in the execution petition on their face value and allowed the execution petition."
The Court noted that the decree only restrained the defendants from dispossessing the plaintiffs "except in due course of law." This meant that any attempt to regain possession must follow legal procedure, including proof of dispossession. The executing court’s failure to record reasons, examine evidence, or conduct an inquiry rendered its orders arbitrary and violative of Article 14 of the Constitution.
The Court further held that the withdrawal of the first execution petition did not bar a second petition per se, but it did require the decree-holder to establish a fresh cause of action - namely, a demonstrable and recent act of dispossession. Since no such proof was offered, the second petition lacked legal foundation.
The Verdict
The revision petition is allowed. The impugned orders dated 13.09.2018, 12.10.2018, and 04.12.2018 are set aside. The warrants of possession issued with police assistance are cancelled. The status quo ante is restored. All pending applications in the execution proceedings are disposed of. No costs are awarded.
What This Means For Similar Cases
Execution Courts Must Record Reasoned Findings
- Practitioners must now insist that executing courts record specific reasons for concluding that dispossession occurred.
- Vague allegations in execution petitions without supporting evidence will not suffice.
- Courts must conduct a minimal inquiry - including possible appointment of a local commissioner - before issuing possession warrants.
Withdrawal of Prior Execution Does Not Automatically Bar Re-filing, But Requires Fresh Cause
- A withdrawn execution petition does not extinguish the right to file again, but the new petition must allege a distinct, recent act of dispossession.
- Mere re-filing without new facts or evidence is an abuse of process.
- Courts must scrutinize whether the alleged dispossession occurred after the withdrawal and whether it was lawful or unlawful.
Collusion Allegations Cannot Be Decided in Execution, But Procedural Defects Can
- While executing courts cannot adjudicate whether a decree is collusive, they must ensure that the execution process itself is lawful.
- Failure to follow procedure - such as ignoring lack of evidence or refusing to verify possession - renders the order voidable.
- This judgment reinforces that execution is not a summary remedy; it must be grounded in judicial reasoning.
