Shamsher Kaur@Shamsher Kaur Dhillon vs. Guru Hargobind Sahib Sewa Society Regd. And Others

Facts

The petitioner, a decree holder, obtained a decree for possession of a shop against a judgment debtor, with possession to be handed over by 31.03.2021. The respondent society filed an objection petition on 09.01.2023, claiming possession since August 2019, alleging it was handed over by both the decree holder and judgment debtor. The Executing Court framed three issues for adjudication, including whether the objector is in legal possession with the decree holder's consent and whether the objection petition is false and a result of collusion. The petitioner challenged this order before the High Court, arguing that the Executing Court failed to record a prima facie finding of substance in the objections before framing issues.

Held

The High Court allowed the revision petition, setting aside the impugned order of the Executing Court dated 10.04.2023. The Court found that the Executing Court had failed to record any prima facie observations to demonstrate that the objection petition filed by the respondent society had substance, which is a prerequisite before settling issues and calling upon parties to lead evidence. The Supreme Court's directive in Rahul S. Shah Vs. Jinendra Kumar Gandhi and others, (2021) 6 SCC 418, emphasizes that issues should be framed only in rare and exceptional cases. The Court requested the Executing Court to re-examine the entire matter and pass a fresh order in accordance with law within two months. The Court did not express a view on the merits of the objection petition itself, only on the procedural failure of the Executing Court.

Key Issues

1. Whether the Executing Court erred in framing issues for adjudication without recording a prima facie finding that the objection petition filed by the respondent society has substance, contrary to the principles laid down by the Supreme Court? (Question of law, turning on principles of executing court procedure). Petitioner's arguments: The petitioner argued that the Executing Court was required to record a prima facie finding of substance in the objections before settling issues and calling upon parties to lead evidence. Reliance was placed on the Supreme Court judgment in Rahul S. Shah Vs. Jinendra Kumar Gandhi and others, (2021) 6 SCC 418, which states that framing issues in execution proceedings should be rare and in exceptional cases. Respondent's arguments: The respondent contended that the Executing Court had only framed issues and called for evidence, and no prejudice was caused to the petitioner. They relied on the judgment in Jini Dhanrajgir and another Vs. Shibu Mathew and another, 2023 AIR (SC) 2567.