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2002 DIGILAW 1147 (PNJ)

Anil Mishra Alias Munna v. Ram Chander

2002-10-29

K.C.GUPTA

body2002
Judgment K.C.Gupta, J. 1. This order shall dispose of civil revision No. 2891 of 2001 (Anil Mishra and Anr. v. Ram Chander and Anr.) and civil revision No. 6468 of 2001 (Ashok Mishra v. Ram Chander) in which the property involved is the same. 2. Briefly stated, the facts are that Smt. Chander Bagga had two sons namely Ashok Mishra and Anil Mishra. Chander Parkash was the husband of Smt. Chander Bagga, Smt. Chander Bagga and Anil Mishra were owners in possession of 2/3rd share of House No. C-582 situated in Chawla Colony, Balabgarh, District Faridabad, while Ashok Mishra was the owner of remaining 1/3rd share in view of the decree passed in Civil Suit No. 259 of 1992 decided on 5.8.1992. 3. On 30.11.1993 Smt. Chander Bagga and Anil Mishra entered into an agreement to sell in respect of their 2/3rd share in the aforesaid house with Ram Chander for a sum of Rs. 1,50,000/- and received Rs. 50,000/- as earnest money and promised to execute the sale deed on or before 5.5.1994 in favour of Ram Chander or his nominee. They further received a sum of Rs. 50,000/-vide receipt dated 13.4.1994 and the balance price of Rs. 50,000/- was to be received at the time of execution and registration of the sale deed. The possession of 2/3rd share in the aforesaid house was also to be delivered at the time of registration of the sale deed. There was a condition in the agreement dated 30.11.1993 that if any dispute arose between the parties, the same would be got settled through arbitration and not by litigation. A dispute arose between the parties. Accordingly, Mr. Kulbhushan Arya was appointed as the sole Arbitrator to settle the dispute. He gave his award on 11.12.1994 and the same was filed in the Court of Senior Sub Judge, Faridabad on 15.12.1994 for making it rule of the Court. Smt. Chander Bagga and Anil Mishra received Rs. 50,000/- of the balance sale consideration. They appeared in the Court on 7.4.1995 and made an application that they had no objection if the award was made rule of the Court. Accordingly, the award was made rule of the Court on 11.9.1995 and a decree was drawn. Later on Smt. Chander Bagga and Anil Mishra refused to execute the sale deed. Hence, Ram Chander decree holder filed an execution application in the Court. Accordingly, the award was made rule of the Court on 11.9.1995 and a decree was drawn. Later on Smt. Chander Bagga and Anil Mishra refused to execute the sale deed. Hence, Ram Chander decree holder filed an execution application in the Court. Smt. Chander Bagga and Anil Mishra J.Ds filed an application for setting aside the order making the award rule of the Court and the decree dated 11.9.1995 on the basis of fraud etc. The said application was, however, dismissed by the Court. They again filed objections under Section 47, CPC which were also dismissed by the executing Court vide order dated 17.2.1999. 4. Aggrieved by the said order, the J.Ds filed revision petition in the High Court which was dismissed on 23.3.1999. 5. The judgment debtors again filed objections which were dismissed on 29.7.1999. They again filed civil revision No. 5729 of 1999 in the High Court against the order dated 29.7.1999 which was also dismissed on 19.12.2000. 6. In the meantime, the J.Ds filed civil suit No. 457 of 1999 to get the decree declared null and void. They moved an application in that suit for ad-interim injunction which was dismissed on 19.2.2001. The appeal filed by them against the order of dismissal of that application for ad-interim injunction was dismissed by the Additional District Judge, Faridabad on 21.4.2001. The J.Ds preferred second appeal in the High Court which was dismissed vide order dated 22.6.2001. 7. Still not satisfied, the J.Ds filed an application for staying the execution of the decree till the decision of the suit which was dismissed by the Civil Judge (Jr. Divn.) Faridabad vide is order dated 23.11.2001 (Annexure P-5). 8. On 31.1.2001 the decree holder moved an application for appointment of a Local Commissioner to get the sale deed executed and registered in favour of nominee of the decree holder namely Anil Kumar. Vide order dated 12.3.2001 (copy Annexure P-2), Addl. Civil Jude (Sr. Divn.) Faridabad appointed Reader of the Court as Local Commissioner with direction to execute the sale deed in favour of Anil Kumar son of Bhiki. Consequently, sale deed was executed in favour of Anil Kumar nominee of the D.H. The decree holder applied for issuance of warrant of possession and also sought police help for execution of the warrant of possession. 9. Consequently, sale deed was executed in favour of Anil Kumar nominee of the D.H. The decree holder applied for issuance of warrant of possession and also sought police help for execution of the warrant of possession. 9. Anil Mishra one of the J.Ds filed an application under Order 21 Rule 29, CPC read with Section 151 CPC, for non-issuance of warrant of possession and also for not providing police help or in the alternative for staying the execution petition. The decree holder filed reply opposing the application by stating that similar application which was filed by the J.Ds was dismissed on 23.11.2001 and as such, the present application was an abuse of the process of Court. After hearing learned counsel for the parties, the said application was dismissed by the Civil Judge (Jr. Divn.) Faridabad, vide order dated 27.4.2002 (copy Annexure P-6). 10. Aggrieved by the orders dated 23.11.2001 Annexure P-5 and 27.4.2002 Annexure P-6, the present revision petition under Article 227 of the Constitution of India read with Section 151, CPC was filed. 11. It may be stated here that Ashok Mishra son of Chander Parkash who had 1/3rd share in the house in dispute filed civil suit Annexure P-2 for declaration to the effect that the judgment and decree dated 11.9.1995 passed in civil suit No. 154 of 1994 titled Ram Chander v. Anil Mishra etc. had got no binding effect on his rights and proceedings taken by Ram Chander on the basis of the aforesaid judgment and decree were null and void and did not create any right or interest in favour of Ram Chander. He had alleged that he was the owner of the house in question. Earlier he had moved an application for dismissing the execution petition or in the alternative for stay of execution petition under Order 21 Rule 29, CPC, read with Section 151 CPC pending disposal of the suit filed by him challenging the judgment and decree dated 11.9.1995. The said application was dismissed vide order dated 23.11.2001 by the Civil Judge (Jr. Divn.) Faridabad. 12. Aggrieved by the said order he filed a revision petition under Section 115, CPC. 13. I have heard, Mr. Harsh Kingra counsel for the petitioners. Mr. Sanjay Bansal counsel for the respondents and carefully gone through the file. 14. The said application was dismissed vide order dated 23.11.2001 by the Civil Judge (Jr. Divn.) Faridabad. 12. Aggrieved by the said order he filed a revision petition under Section 115, CPC. 13. I have heard, Mr. Harsh Kingra counsel for the petitioners. Mr. Sanjay Bansal counsel for the respondents and carefully gone through the file. 14. Learned counsel for the petitioners contended that an unregistered award should not have been made rule of the Court and consequently, the decree should not have been drawn and the same is invalid. The objection had already been taken earlier and has been dealt by this Court vide order dated 19.12.2000 passed by Honble M.L. Singal, J. It was observed that even if it was presumed that the decree in dispute was based on an unregistered award, the same could not be questioned in the execution. The decree as such has not been challenged. It has been observed by the Full Bench of the Madhya Pradesh High Court in Mool Chand and Anr. v. Manohar Lal, A.I.R. 1965 M.P. 75 that even if a decree is based on unregistered award, it cannot be questioned in execution. 15. Counsel for the petitioners next contended that possession had been ordered to be delivered by the executing Court to Anil Kumar who was a stranger to the proceedings being Benami vendee of Ram Chander D.H. and he cannot take possession of the property. Again the contention of the learned counsel is not tenable. It was specifically provided in the agreement to sell that sale deed was to be executed in favour of Ram Chander D.H.or his nominee. Since, Anil Kumar is the nominee of Ram Chander, so, the sale deed was validly executed in his favour and he was not Benami. Anil Kumar is entitled to take possession of the property in question in execution of the decree obtained by Ram Chander being his noninee. There is no question of his seeking substitution because Anil Kumar is not a transferee of the decree but he is just a nominee. Thus, there is no question of staying the execution under Order 21 Rule 29 CPC pending the civil suit. There is no question of his seeking substitution because Anil Kumar is not a transferee of the decree but he is just a nominee. Thus, there is no question of staying the execution under Order 21 Rule 29 CPC pending the civil suit. The High Court vide order dated 6.12.2001 passed in civil revision No. 6468 of 2001 titled Ashok Mishra v. Ram Chander had already ordered that possession of the property in dispute if delivered will be subject to the final decision in the revision petition. Therefore, if the revision petition in the High Court succeeds or the suit finally succeeds then petitioner Ashok Mishra would get back the possession of the property in dispute. 16. The petitioners have made every possible efforts to forestall the delivery of pos session. Various orders, as stated above show that patience of the Courts has exhausted. The litigation should be put to an end. The matter in dispute is not such, which could be entertained under revisional jurisdiction to be exercised under Article 227 of the Constitution of India read with Section 115 CPC. There is no illegality or impropriety in the impugned order passed by the Courts below. It is not the case that such orders are with out jurisdiction or the courts below have passed the orders in excess of their jurisdiction. Consequently, both these revision petitions are dismissed subject to Rs. 10,000/- as special costs.