Gopal Singh Vs. Sher Singh and ors. - Court Judgment

Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order.hemant gupta, j.1. the challenge in the present revision petition is to the order passed by the learned executing court on 14.12.2004 whereby the learned executing court framed issues in respect of inter se dispute between the legal heirs of the decree holder to seek execution of the decree passed in favour of the de-. ceased gurbax singh.2. one gurbax singh filed a suit for possession of the property in dispute which was decreed on 14.12.1984. the appeal against the said judgment and decree was accepted on 7.3.1987 by the then additional district judge, barnala, but second appeal (r.s.a. 1486 of 1987) against the said judgment preferred by gurbax singh was accepted on 8.1.2003 and the decree passed by the learned trial court was restored. further appeal of the defendants before the supreme court was dismissed. it may be noticed that during the pendency of second appeal before this court, gopal singh was impleaded as legal representative of deceased gurbux singh. after the decree as passed, he sought execution of the said decree in which an application was filed by other legal heirs of deceased gurbax singh on the ground that gopal singh has sought impleadment on the basis of unregistered will dated 6.12.1984, whereas the said will is not executed by gurbax singh. therefore, it was prayed that they be impleaded as party in the execution and the validity of the will be examined before executing the decree against the judgment debtors.3. learned counsel for the petitioner has argued that the dispute inter se legal heirs of gurbax singh cannot be adjudicated upon in execution proceedings against the judgment debtor. any dispute inter se legal heirs of the holder is required to be determined in independent proceedings. the petitioner is one of the legal heirs of deceased gurbax singh, even in the absence of will, is entitled to seek execution of the for the benefit of all legal heirs leaving the legal heirs to establish their rights in independent proceedings. reference is made to mrs. annupam prauthi and ors. v. smt. rajen bal and ors. : air1988sc2041 , wherein, in somewhat similar circumstances, it has been held that it would open to the applicant to claim her right under the will in independent proceedings but such dispute cannot be adjudicated upon in a suit against the third person. reference is also made to a full bench decision of this court reported as mohinder kaur and anr. v. piara singh and ors. wherein it has been held that a decision under order 22 rule 5 of the code of civil procedure, 1908, is only directed to answer an orderly conduct of the proceedings with a view to avoid the delay in the final decision of the suit till the persons claiming to be the representatives of the deceased party get the question of succession settled through a different suit. it was held to the following effect;-we are, therefore, of the opinion that in essence a decision under order 22 rule 5, civil procedure code, is only directed to answers an orderly conduct of the proceedings with a view to avoid the delay in the final decision of the suit till the persons claiming to be the representatives of the deceased party get the question of succession settled through a different suit and such a decision does not put an end to the litigation in that regard. it also does not determine any of the issues in controversy in the suit.... 4. on the other hand, learned counsel for the respondents relies upon single bench judgment of this court in charanjit singh and anr. v. bharatinder singh and ors. (1987-1)91 p.l.r. 403, wherein all the legal heirs were impleaded to represent the estate of deceased while leaving the question about the genuineness and validity of the will open. reference is also made to another judgment of supreme court in ashan devi and anr. v. phulwasi devi and ors. a.i.r. 2004 s.c. 511 to contend that all the objections in respect of execution of the are to be decided by the executing court and not in a separate suit and, therefore, this question is also required to be decided by the executing court.5. after hearing learned counsel for the parties, i am of the opinion that the judgments referred to by the learned counsel for the respondents are not applicable to the facts of the present case. ashan devi's case (supra) deals with a question where objections were filed by a third party to the suit on the ground that he is in possession of the suit property. such objection has the effect on the execution of the decree which was sought to be executed by the decree holder.6. however, in the present case, the objections raised are not in respect of the execution of the decree against the judgment debtors but restricts the disputes between the legal heirs as to who is entitled to execute the decree. such dispute which is not pertaining to execution of the decree. the right to seek execution of the decree is outside the scope of section 47 or order 21 rules 97 and 99 of the code of civil procedure, 1908. even if one of the legal heirs is able to execute the decree, he shall be taking the estate of the deceased subject to rights of the rightful claimant which may be determined in any subsequent suit but by raising dispute regarding the estate of the deceased decree holder, execution of the cannot be deferred so as to delay and frustrate the execution of the decree against the judgment, thus, granting benefit to the judgment debtor. therefore, the said judgment relied upon by learned counsel for the respondents is not applicable to the facts of the present case.7. the judgment in charanjit singh's case (supra), is again not relevant for the reason that genuineness' and validity of the will was left open to be decided in a subsequent suit. on the other hand, full bench of this court in mohinder kaur's case (supra), has held that when the legal representative in a suit is impleaded, he is impleaded for an orderly conduct of the proceedings with a view to avoid delaying of final decision of the suit. final decision of the suit, in fact, comes to an end with the successful execution of the decree only.'8. therefore, i am of the opinion that the impugned order passed by, the learned executing court suffers from patent illegality causing substantial injustice to the estate of deceased gurbax singh and, therefore, not sustainable in law.9. consequently, the revision petition is allowed and the impugned order is set aside with liberty to the parties to establish their title to the estate of gurbax singh in a properly constituted proceedings but such question cannot be made subject matter of execution proceedings. learned executing court is directed to execute the decree forthwith.