REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.1885 OF 2008

Lekh Raj(Dead) Through L.Rs. & Ors. ….Appellant(s)

VERSUS

Ranjit Singh & Ors.        …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) This  appeal  is  filed  by  the  judgment-debtors

(defendants)  against  the final  judgment and order

dated  04.08.2006  passed  by  the  High  Court  of

Punjab  and  Haryana  at  Chandigarh  in  C.R.  No.

3823 of 2005 whereby the High Court dismissed the

civil revision filed by the appellants herein against

the  order  dated  16.07.2005  of  the  Additional

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District Judge, Jagadhri which upheld the order of

the executing Court dated 12.05.2005.   

2) We  herein  set  out  the  facts,  in  brief,  to

appreciate the issue involved in this appeal.  

3) The  proceedings,  which  are  traveled  to  this

Court in appeal,  arise out of the execution initiated

by  the  respondents(plaintiffs/decree-holders)

against  the

appellants(defendants/judgment-debtors) in relation

to  suit  land  (agriculture)  bearing  Kill  Nos.  1/19,

1/22, 1/23, 1/24 and 2 measuring 119 Kanals 7

Marlas  situated  in  village  Isharpur,  Tahsil

Jagadhari,  District Yamuna Nagar on the basis of

the judgment and decree dated 14.05.1965 passed

by Additional District Judge (II), Ambala in Appeal

No. 185 of 17.02.1964 which arose out of Civil Suit

No.  461/1962  decided  on  27.11.1963  in

respondents’ favour.  

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4) The respondents filed a civil  suit against the

appellants’  predecessor-Lekhraj  seeking  a

declaration  and  other  consequential  reliefs  in

relation to the aforementioned suit  land.  The suit

was filed by the plaintiffs asserting  inter alia their

customary rights which were, at the relevant time,

recognized in law in the suit land for claiming reliefs

against the defendants.  

5) Though the suit came to be dismissed by the

Trial Court, it was decreed in an appeal filed by the

plaintiffs by the Additional District Judge(II) Ambala

vide  appellate  judgment/decree  dated  14.05.1965

as  detailed  above.  This  appellate  decree  became

final  because  the  defendants  did  not  further

challenge the decree in second appeal.  

6) The  operative  portion  of  the  appellate

judgment/decree,  which  resulted  in  decreeing  the

plaintiffs’  suit, reads as under:

“6………….. In view of my finding above, I,  therefore,  hereby  setting  aside  the

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judgment and decree of the trial court accept the  appeal  and  grant  the  plaintiffs  a declaration  that  the  sale  of  the  land  in dispute  by  defendant  No.2  in  favour  of defendant No.1 shall not effect the rights of inheritance  after  the  death  of  their  father Kanshi Ram and that they shall be entitled to its  possession  on  his  death  on  payment  of Rs.2000/- to defendant No.1.  In case they do not want to avail of the decree as is granted to them for declaration, they shall be entitled to  possession  of  the  land  in  dispute  on payment  of  Rs.5000/-  to  defendant  No.1 which  shall  be  deposited  by  them  on  or before 14/6/65.  The parties shall bear their own costs throughout.”  

7) It is this decree, which was put in execution by

the decree holders (respondents herein) against the

appellants  (judgment-debtors)  in  the  Executing

Court.  The  appellants,  on  being  noticed,  entered

appearance  and  raised  several  objections  to  the

execution of the decree.  

8) According  to  the  appellants,  first,  the

execution application filed by the respondents was

barred  by  time;  second,  the  father  of  the  decree

holders  having  purchased  another  property  in

exercise  of  his  right  of  pre-emption  through  sale

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deed,  the  decree  in  question  had  become

unexecutable;  third,  no  notice  of  the  proceedings

was served on the appellants and hence execution

application was not maintainable; fourth, the decree

holders having failed to deposit the money in terms

of the decree,  they had lost their right to file the

execution application; fifth, since in the meantime,

the judgment-debtors made investment in the suit

land   and  made  it  cultivable  by  planting  the

trees/crops  and  also  installed  the  tube-well,  the

decree  became  unexecutable  against  them;  sixth,

the  suit  land  being  in  joint  ownership  of  several

parties so long as it was not partitioned amongst all

the co-owners, the decree holders had no right to

claim  any  right  in  the  suit  land.   These  were

essentially  the  objections  taken  by  the

judgment-debtors  in  their  reply  to  oppose  the

execution of the decree in question.

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9) The  Executing  Court,  by  order  dated

12.05.2005,  overruled  all  the  objections  holding

them to be wholly frivolous and devoid of any merit.

In  consequence,  the  executing  Court  allowed  the

execution application to give effect to the terms of

the decree.

10) The  judgment-debtors,  felt  aggrieved,  filed

appeal  before  the  Additional  District  Judge.  The

appellate  Court  by  order  dated  16.07.2005

dismissed the appeal  and affirmed the order of the

Executing  Court.  The  judgment-debtors,  felt

aggrieved, filed revision before the High Court. By

impugned  order,  the  High  Court  dismissed  the

revision and affirmed the  orders  of  the  Executing

and Appellate Court, which has given rise to filing of

this appeal by the judgment-debtors.

11)  Heard Mr. Ajay Pal,  learned counsel  for the

appellants  and  Mr.  Neeraj  Kumar  Jain,  learned

senior counsel for the respondents.

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12) Learned counsel for the appellants (judgment-

debtors) while attacking the legality and correctness

of  the  impugned  order  raised  only  one  point.  In

other words, all the objections on which the decree

in  question  was  challenged  before  the  Executing

Court,  first  appellate  Court  and  lastly  before  the

High Court  were  given up and the  challenge  was

confined only on one legal point.  

13) According  to  learned  Counsel,  the  decree  in

question  was  rendered  nullity  in  the  light  of  the

amendment  made in 1973 in the  Punjab Custom

(power to Contest) Act, 1920 (hereinafter referred to

as  “the  Act”).  It  was urged that  the  rights  of  the

plaintiffs  (decree holders)  on which their  suit  was

based were, at the relevant time, governed by the

provisions of the Act but the amendment made in

1973  took  away  those  customary  rights.   It  was

urged that the amendment was held retrospective in

its  operation  by  this  Court  in  two  decisions  in

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Darshan Singh Vs Ram Pal Singh & Anr., (1992)

Supp (1) SCC 191 and Kesar Singh and others vs.

Sadhu (1996) 7 SCC 711 and hence the very basis

of  filing  the  suit  stood  withdrawn  by  reason  of

amendment. It  was,  therefore,  urged that it  is for

this  reason,  the  decree  in  question  had  become

nullity. It was urged that since the objection, apart

from being legal, goes to the root of the case, hence,

it is permissible to raise such objection in execution

proceedings.     

14) In our considered opinion, the submission is

wholly misconceived and deserves rejection on more

than one ground detailed infra.

15) First, this objection was neither raised before

the  Executing  Court  nor  the  first  appellate  Court

and nor the High Court. In other words, when the

objection was not even raised at any stage of  the

proceedings then it cannot be allowed to be raised

for the first time in this appeal. Nothing prevented

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the judgment-debtors to raise this objection along

with several other objections to enable the Courts to

record  their  finding  on  such  objection.  It  was,

however, not done.   

16) Apart from what is held above, assuming for

the  sake  of  argument  that  the  judgment-debtors

could raise such objection and raised it, yet in our

view, it had no merit. It is for the simple reason that

the suit and the appeal, which arose out of the suit,

stood  already  decided  much  prior  to  the  date  of

amendment coming into force.  In other words, the

suit/appeal  remained  unaffected  with  the

amendment.  

17) It is clear from the fact that the suit was filed

in  1962  whereas  the  appellate  Court  passed  the

decree in 1965 and the amendment in the Act was

introduced and came into force in 1973. So the  lis

had already attained the  finality  much before  the

amendment came into force.  

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18) Second, the amendment was held retroactive

in nature as would be clear from Para 4 of  Kesar

Singh(supra), which reads as under:

“4. The controversy is no longer res integra.  This Court in Darshan Singh v. Ram Pal  Singh, 1992 Supp(1) SCC 192 considered the  effect of the Amendment Act, 1973 on the  customary right of the Punjab Custom (Power to Contest) Act, 1920 and held that: (SCC pp.  219-22, paras 51-60)

“Considering the above principles, the  provisions  of  the  principal Act, the statement of objects and reasons and the provisions of the Amendment Act and the decisions of  the Punjab High Court and of this Court, we are of the view that Section 7 of the principal Act as amended by the Amendment Act is retroactive and is applicable to pending  proceedings. The decisions  of  this  Court  dated 28-11-1986  in  Ujaggar  Singh v. Dharam  Singh,  CA  No.1263  of 1973(SC) and in  Udham Singh v. Tarsem  Singh,  CA  No.1135  of 1974(SC) dated 15-7-1987 do not need reconsideration.”  

    (emphasis supplied)

19) Third, the amendment being retroactive, it was

applicable  only  to  those  proceedings,  which  were

pending  on  the  date  when  the  amendment  came

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into force, i.e. 1973, or where the proceedings were

initiated after the date of amendment.  

20) In our considered view, in order to take benefit

of  the  amendment,  it  was  necessary  for  the

appellants  (judgment-debtors)  to  have  filed  the

second  appeal  against  the  decree  of  the  first

appellate Court and if the second appeal had been

decided after 1973, the impact of the amendment on

the rights of the parties could have been considered

in the context of the amendment in the light of law

laid  down  by  this  Court  in  Kesar  Singh’s case

(supra).  It  was,  however,  not  done  because,  as

mentioned  above,  the  decree  in  question  had

already attained the finality in 1965.

21) If  the rights  of  the parties  had already been

crystallized  then,  in  our  opinion,  subsequent

change  in  law  would  not  take  away  such  rights

which had attained finality due to  lis coming to an

end inter se the parties prior to such change.  

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22) In the case of Kesar Singh(Supra), the plaintiff

had filed the suit in 1978 and second appeal arising

out of the suit in 1979, so, the lis was initiated after

1973. It is due to this reason, it was held that the

rights of the parties were governed by the amending

Act. Such is not the case here. The law laid down in

Darshan Singh and  Kesar  Singh (supra)  cannot,

therefore, be applied to the facts of this case.

23) There is  one more distinguishing fact due to

which law laid down in  Darshan Singh and  Kesar

Singh (supra) cannot be applied to the facts of this

case. It is not in dispute that the provisions of the

Amendment Act of 1973 are applicable only to the

State of Punjab whereas the case in hand arises out

of State of Haryana. There is nothing on record to

show that the provisions of this Act were extended

to the State of Haryana also and, if so, since when

and by which adaptation of the laws.  

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24) It is for these reasons, we are of the view that

the submission urged by the appellants questioning

the decree as being nullity  is  devoid of  any merit

and deserves rejection.

25) Though learned counsel for the appellants did

not attack the concurrent findings of the two courts

in this appeal, yet we have perused the findings and

find that they were properly recorded.  In the first

place,  the  objections  raised  were  all  on  the  facts

which  could  not  be  enquired  into  execution

proceedings.  Second, it is a settled principle of law

that  the  executing  Court  cannot  go  behind  the

decree.  This principle squarely applies to the facts

of this case because all the factual objections raised

by the appellants could be raised only in the suit in

its trial but not in execution proceedings.  In other

words, any enquiry into the objections would have

taken the executing Court behind the decree which

was  not permissible in law.   

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26) In the light of foregoing discussion, we find no

merit  in  the  appeal,  which  fails  and  is  hereby

dismissed.       

               ………...................................J.  [R.K. AGRAWAL]  

                                                               …...……..................................J.

        [ABHAY MANOHAR SAPRE] New Delhi; August 16, 2017  

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