JUDGMENT
I.A. Ansari, J.
1. Does an objection hearing, on an application resisting execution of a decree, include the right to adduce evidence in support of such an application ? This is the moot question, which this second appeal has raised for determination.
2. Title Suit No. 28 of 1988 was instituted, as plaintiff, by the present respondent for declaration of his rights, title and interest over the suit land and for delivering of possession thereof by evicting the defendants therefrom. The suit was decreed on 30.8.1993 and the appeal preferred by the defendants, which gave rise to TA No. 06/94, was also dismissed, on 22.11.1999, by the learned Civil Judge (Sr. Divn.), Tezpur. In consequence thereof, the respondent, as decree-holder, put the decree, in question, for execution. Title Execution Case No. 09 of 2002 accordingly commenced. While the execution proceeding was so pending, the appellants herein made an application under Section 151 CPC claiming, inter alia, that though they had been in possession of the suit land, covered by the decree aforementioned, for long before the institution of the suit, they were not parties to the suit and with the help of the decree aforementioned, they were sought to be evicted from a portion of the suit land, which had so been in their occupation. The decree-holder on 17.11.2000, filed his objection to the application so made by the present appellants. The learned executing Court fixed the application of the present appellants for objection hearing and the matter was accordingly heard on 30.3.2001. Upon hearing the learned counsel for the parties, the learned Executing Court vide order, dated 30.3.2001, dismissed the application of the appellants and directed the decree-holder to take further steps for execution of the decree/Aggrieved by the order, dated 30.3.2001, aforementioned, the present appellants had impugned the same in Misc. Appeal No. 04/2001. This appeal failed and was accordingly dismissed by judgment and order, dated 11.12.2001, passed by the learned Civil Judge (Senior, Division), Sonitpur, Tezpur. Impugning, the orders, dated 30.3.2001, as well as the order, dated 11.12.2001, aforementioned, the appellants have, now, approached this Court with the help of this second appeal.
3. I have heard Mr. S. K. Singh, learned counsel appearing on behalf of the appellants. It has been pointed out, on behalf of the appellants, that the learned executing Court had merely fixed for Objection hearing the application of the appellants resisting the execution of the decree and since the learned Executing Court had not fixed any date for adducing evidence by the parties concerned, no evidence could be adduced by the appellants and in consequence thereof, the learned executing Court dismissed the said application relying on the written statements of the defendants, which stood filed in Title Suit No. 28/88 aforementioned. Placing reliance upon the decision in Lila Sabar and Anr. v. Golap Saikia, reported in AIR 1998 SC 1754, Mr. Singh has also submitted that the learned executing Court ought to have given opportunity to the appellants to adduce evidence in support of their claim of possession of a portion of the suit land, covered by the decree, which was sought to be executed.
4. While considering the submissions made on behalf of the appellants, it is imperative to note that the application made by the appellants in the execution proceeding resisting the execution of the decree was made on the ground that the appellants therein had been in possession of the suit land covered by Title Suit No. 28/98 aforementioned and that without their having been made parties to the suit, the decree obtained therein was sought to be executed against them too. After filing of the objection by decree-holder to the application so made by the appellants, the same was fixed for objection hearing. The objection hearing obviously included hearing on the merit of the application made by the appellants and the hearing on the merit included, undoubtedly, adducing of evidence too. When the learned executing Court had fixed the application, in question, for hearing, the appellants could have adduced evidence in support of their said application. It cannot, therefore, be said that the appellants could not have adduced evidence.
5. Apart from the fact that when the application, in question, had been fixed for hearing, the appellants were entitled to adduce evidence, there is nothing in the materials on record nor is it contended before me, on behalf of the appellants, that the appellants either applied or sought for permission to adduce evidence in support of their case that they have had been in possession of the suit land for long before the institution of the suit land and even when the application resisting execution of the decree had been made they were still in possession of the suit land.
6. Situated thus, it was clear that the learned executing Court was required to decide the application, in question, on the basis of the materials on record. According to Section 101 of the Evidence Act, when a person is bound to prove the existence of any fact, the burden of proof lies on that person. In the case at hand, since the appellants were the ones, who wanted to prove the existence of the fact of their possession over a portion of the suit land, the burden of proof lied on them ; but they having not produced any evidence at all, at the time, when their said application was taken up for hearing, the appellants cannot, now, turn back and complain that they were not given any opportunity to adduce evidence. Reference, therefore, made by Mr. Singh to the case of Lila Sabar (supra) is wholly misplaced and it does not help the appellants inasmuch as the case law, relied upon by Mr. Singh, nowhere lays down that when an application, such as the one under consideration, is fixed for objection hearing, the objection hearing will not include the right to adduce evidence.
7. Coupled with the above, it is important to bear in mind, as correctly noted by the learned executing Court, that the suit, in question, was a contested suit and the defendants did file their written statement. The written statement gave no indication at all about the existence of possession over any part or portion of the suit land by the present appellants. This apart, the appellants also, while resisting the execution of the decree, did not allege that the decree was obtained by fraud or by collusion between the plaintiff-respondent, on the one hand, and the judgment-debtor-defendants on the other. Considered from this angle, it is clear that the learned executing Court was quite justified in taking the view that the appellants were not in possession of the suit land till the date of the decree, in question. Similarly, the learned appellant Court, while passing the impugned judgment, dated 11.12.2001, aforementioned committed in my firm view, no error of law or facts in upholding the order, dated 30.3.2001, aforementioned.
8. What logically follows from the above discussion is that this second appeal has no merit inasmuch as this appeal involves no question of, far less substantial question of law for determination. However, the result of the second appeal cannot debar the appellants from instituting appropriate suit in the Court of competent jurisdiction challenging the decree itself on the ground that the decree had been obtained without impleading the appellants as party thereto, though they were possession of the suit land even on the date of the institution of the suit and have had remained so thereafter. If the appellants institute any such suit in future, the observations made hereinabove shall not affect the merit of the suit.
9. Considering, therefore, the matter in its entirety, I find no reason to admit this second appeal. The appeal shall accordingly stand dismissed.
10. No order as to costs.