Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar set aside the Executing Court’s order and directed it to examine, on merits, the claim raised by the objectors before enforcing the decree. In doing so, the Court clarified that the scope of execution proceedings requires the Executing Court to determine an objection relating to execution even when the objector was not involved in the original suit or decree. The dispute concerns a permanent injunction over agricultural land, which the decree holders seek to enforce and which the judgment debtors resist by asserting an independent tenancy right derived from a protected tenant. The Court held that such a claim directly affects execution and must therefore be adjudicated by the Executing Court.

The dispute arises out of a civil suit for permanent prohibitory injunction filed by the decree holders against the original defendants, including the mother of the present petitioners and another individual. The trial court decreed the suit in 1993, restraining the defendants from encroaching upon specified parcels of land. After the decree, the original defendant passed away, and the petitioners were brought on record in the execution proceedings as her legal representatives.

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The decree holders initiated execution on the ground that the petitioners were interfering with possession of the land. The petitioners filed objections asserting that their claim to the property did not arise through the deceased defendant but independently, as male lineal descendants of a protected tenant recorded in the revenue entries of 1969–70 and 1971. They contended that the protected tenant had died issueless in 1973, and they succeeded to the tenancy rights under the provisions of the Jammu & Kashmir Tenancy Act. They further alleged manipulation of revenue records and asserted continuous possession of the land in their own right.

The decree holders opposed the objections, maintaining that the decree was binding. The Executing Court rejected the objections, stating that it could not go beyond the decree. The petitioners thereafter challenged this order, relying on Sections 47 and 50 of the Code of Civil Procedure to argue that their independent claim required determination within the execution proceedings.

The Court recorded that the petitioners’ claim rested on the plea that they inherited the tenancy rights independently of their status as legal heirs, observing that “the petitioners/judgment debtors are claiming their right to the suit property not through their mother… but in their independent capacity.” It noted the core issue for determination as whether the Executing Court was obliged to adjudicate this objection during execution proceedings.

The Court analysed Section 47 CPC and stated that “all questions arising 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, shall be determined by the Court executing the decree and not by a separate suit.” It further stated that, for these purposes, “a question as to whether any person is or is not the representative of a party shall… be determined by the Court.”

Section 50 CPC was examined and the Court recorded that “where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased judgment debtor which has come to his hands.”

After referring to Supreme Court precedents, the Court noted: “the Executing Court is bound to adjudicate upon the claim of an objector… even if the objector was neither a party to the earlier proceedings nor the decree was passed against him.” It added that the statutory framework enables the executing court to decide claims of third parties to avoid separate suits.

The Court further recorded that the petitioners’ claim that they held the land as tenants in their independent capacity—unrelated to their mother—constituted a question relating to execution, discharge, or satisfaction of the decree. It observed that the Executing Court “has declined to go into the aforesaid questions on the ground that the Executing Court cannot go behind the decree.” It then concluded that the Executing Court “has failed to exercise the jurisdiction vested with it.”

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The Court held that “the revision petition is allowed and the impugned order dated 19.03.2025 passed by the learned Executing Court is set aside. The matter is remanded to the Executing Court for deciding the claim projected by the petitioners/judgment debtors in their objections to the execution petition, on its merits after hearing the parties.”

Advocates Representing the Parties

For the Petitioners: Mr. P.N Goja, Sr. Advocate with Mr. Abhinav Jamwal, Advocate
For the Respondents: Mr. Rohit Kohli, Sr. Advocate with Mr. Raghav Gaind, Advocate

Case Title: Ghulam Haider and another v. Kamlesh Singh and others
Case Number: CR No. 10/2025
Bench: Justice Sanjay Dhar