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2007 DIGILAW 2218 (PNJ)

Shiv Charan Dass through Lrs. v. Surat Singh

2007-12-19

SATISH KUMAR MITTAL

body2007
JUDGMENT Satish Kumar Mittal, J. - This Regular Second Appeal has been filed by the legal representatives of Shiv Charan Dass (defendant No. 1 in the suit) against part of the judgment and decree dated 18.8.1981, passed by Additional District Judge, Sonepat, whereby suit of Surat Singh (plaintiff No. 3) with regard to 20 kanals 16 marls of land out of 53 kanals 18 marlas of land has been decreed and he has been declared owner in possession of the said land, which has been held to be not liable to be attached and sold in execution of the decree passed in civil suit titled Shiv Charan Pass v. Parma Nand. 2. In order to appreciate and adjudicate the points raised by Daya Kishan, one of the legal representatives of appellant Shiv Charan Dass, who has appeared in person, it will be appropriate to briefly state the facts of the case. 3. In the present case, Parma Nand son of Thakur Dass (defendant No. 2 in the suit) was the owner of the land in question measuring 53 kanals 18 marlas. One Lala Ram son of Mangat Ram obtained a money decree of Rs. 1,400/- against Parma Nand on 13.2.1963. During the pendency of the said suit, Parma Nand gifted 23 kanals 4 marlas in favour of Surat Singh (plaintiff No. 3 in the suit) by a gift deed dated 9.1.1962, which was presented for registration on 10.1.1962 and was got actually registered on 25.3.1963, after the decision of the aforesaid suit. After obtaining the aforesaid money decree, Lala Ram filed execution application. In that execution application, initially, the total land measuring 53 kanals 18 marlas was attached on 19.3.1963. Plaintiff No. 3 Surat Singh filed objections under Order 21 Rule 58 C.P.C. against the attachment of 23 kanals 4 marlas, which was gifted to him by Parma Nand. Those objections were dismissed on 30.4.1966. Thereafter, in July, 1966, Surat Singh filed a suit (Civil Suit No. 347 of 1966) under Order 21 Rule 63 C.P.C., against decree holder Lala Ram and judgment debtor Parma Nand. The said suit was decreed on 16.8.1967, vide judgment and decree Ex. P6 and Ex. P7 and it was held that the gifted land was not liable to be attached and sold in execution of the aforesaid money decree. The said suit was decreed on 16.8.1967, vide judgment and decree Ex. P6 and Ex. P7 and it was held that the gifted land was not liable to be attached and sold in execution of the aforesaid money decree. In the meanwhile, during the pendency of the aforesaid suit filed by Surat Singh, defendant Shiv Charan Dass purchased the said money decree from Lala Ram vide decree dated 4.1.1967. Thereafter, he moved an application before the Executing Court, where execution of the money decree was pending, for recognizing him as transferee decree holder. The said application was allowed vide order dated 24.2.1968 (Ex.D2). The said order read as under : "In view of the written statement of Lala Ram original DH and from the perusal of the copy judgment dated 4.1.67 in a declaratory suit by Shiv Charan Dass against Lala Ram, Parma Nand, Shiv Charan Dass petitioner is declared to be the decree holder of this decree under execution in place of Lala Ram. Entry to this effect be made in the register No. 1. The application be filed as unsatisfied." 4. It is mentioned here that initially, the suit land was attached on 19.3.1963 and at one point of time, the execution application filed by Lala Ram was dismissed as unsatisfied, vide order dated 22.5.1965 (Ex.D3). Subsequently, Parma Nand mortgaged 33 kanals 2 marlas of land in favour of plaintiffs No. 1 and 2 vide mortgage deed dated 28.7.1970. There was a condition in the mortgage that in case the mortgagor failed to redeem the mortgaged land within one year, then it will become absolute sale. Parma Nand did not pay the mortgage consideration within the stipulated period. Thereafter, an application was filed by plaintiffs No. 1 and 2 under Section 8 of the Regulation No. 7 of 1806 against Parma Nand in the court of District Judge, Rohtak and the said application was decided in their favour on 27.3.1973. Thereafter, defendant Shiv Charan Dass applied for execution of the money decree by getting the suit land sold on the allegation that it was attached on 19.3.1963 and the said attachment was still intact. The plaintiffs filed objections to the said application praying that the suit land be not sold in execution of the decree. Their objections were dismissed by the Executing Court vide order dated 25.1.1975 (Ex. P8). 5. The plaintiffs filed objections to the said application praying that the suit land be not sold in execution of the decree. Their objections were dismissed by the Executing Court vide order dated 25.1.1975 (Ex. P8). 5. Thereafter, on 11.2.1975, the present suit was filed by the plaintiffs. In the suit, it was prayed that plaintiffs No. l and 2 are owners in possession of 33 kanals 2 marlas of land, which they got on mortgage with the conditional sale from defendant No. 2 Parma Nand and lateron, they became owners of the same under the order dated 27.3.1973, passed by District Judge, Rohtak. Therefore, the said land is not liable to be sold in execution of the money decree purchased by defendant No. l Shiv Charan Dass from Lala Ram, the original decree holder. Plaintiff No. 3 Surat Singh pleaded that the land measuring 20 kanals 16 marlas, which was attached in execution, was gifted to him by Parma Nand in the year 1962, vide a registered gift deed and he was put in possession of the same, therefore, he is owner in possession of the said land and the same cannot be sold in execution of the decree. 6. The trial court decreed the suit of the plaintiffs, while coming to the conclusion that though initially, the suit land was got attached by Lala Ram in execution of the money decree, but subsequently that execution application was dismissed as un-satisfied vide order dated 22.5.1965 (Ex.D3), but the attachment was kept as continued. Thereafter, when defendant Shiv Charan Dass moved an application in the said execution application for recognizing him as transferee decree holder, the same was disposed of vide order dated 24.2.1968 ordering that the application be filed as un-satisfied. The learned trial court came to the conclusion that after that date, attachment did not remain continue, therefore, mortgage of 33 kanals 2 marlas of land was valid and under the said mortgage and by the order of District Judge, Rohtak, plaintiffs No. 1 and 2 became owner in possession and the said land was not liable to be attached. It was further held that the gift deed with regard to land measuring 23 kanals 4 marlas was executed prior to attachment of the land and in that regard, suit of plaintiff No. 3 was also decreed vide judgment and decree dated 16.8.1967 (Ex. P6 and Ex. It was further held that the gift deed with regard to land measuring 23 kanals 4 marlas was executed prior to attachment of the land and in that regard, suit of plaintiff No. 3 was also decreed vide judgment and decree dated 16.8.1967 (Ex. P6 and Ex. P7), prior to the order dated 24.2.1968, passed by the Executing Court. Therefore, the land measuring 20 kanals 16 marlas is not liable to be attached, and sold in execution of the money decree, as plaintiff No. 3 become owner in possession of this land prior to the order of attachment dated 19.3.1963. 7. Aggrieved against the said judgment and decree of the trial court, defendant Shiv Charan Dass filed appeal, which was partly allowed by Additional District Judge, Sonepat, vide judgment and decree dated 18.8.1981. It was held that as far as land measuring 20 kanals 16 marlas, which was part of the gift deed dated 9.1.1962, executed by Parma Nand in favour of plaintiff No. 3 Surat Singh, which was presented for registration on 10.1.1962 and got registered on 25.3.1963, is concerned, plaintiff No. 3 has become absolute owner in possession of the same, prior to the attachment of the land on 19.3.1963. It was held that the transaction of gift had taken place on 9.1.1962 with the execution of the document and handing over possession of the gifted land to the donee. The donee became owner in possession of the same on the same day, though the document was got registered subsequently on 25.3.1963. It was further held that the said right of plaintiff No. 3 was also subsequently recognized and he was held to be owner in possession of the same in the civil suit filed by him against Lala Ram decree holder and Parma Nand judgment debtor. The said suit was filed in July, 1966 and was decreed on 16.8.1967. It was further held that defendant Shiv Charan Dass had purchased the money decree from Lala Ram during the pendency of the said suit and he had got himself declared as transferee of the money decree in a suit, which was decreed on 4.1.1967. On the basis of that declaration, he moved an application before the Executing Court, which was disposed of vide order dated 24.2.1968. Therefore, it has been held that defendant Shiv Charan Dass is bound by the judgment and decree dated 16.8.1967 (Ex. On the basis of that declaration, he moved an application before the Executing Court, which was disposed of vide order dated 24.2.1968. Therefore, it has been held that defendant Shiv Charan Dass is bound by the judgment and decree dated 16.8.1967 (Ex. P6 and Ex. P7). With these reasoning, the judgment and decree of the trial court decreeing the suit with regard to land measuring 20 kanals 16 marlas was affirmed. 8. Regarding the remaining land measuring 33 kanals 2 marlas, the first appellate court set aside the decree of the trial Court while coming to the conclusion that the said land, which was mortgaged by Parma Nand in favour of plaintiffs No. l and 2 on 28.7.1970, was liable to be sold in execution of the money decree purchased by Shiv Charan Dass, because the said portion of the land was got attached on 19.3.1963 and in view of the provision of Order 21 Rule 51 C.P.C., the attachment remained continue even after 22.5.1965; when the execution application filed by the decree holder was filed as un-satisfied with a specific order that the attachment will remain intact. It was further held that from the order dated 24.2.1968, it cannot be presumed that after the said order, the attachment ceased to continue, because Shiv Charan Dass did not file that application for getting the attached land sold. The said application was filed by him for recognizing him as transferee decree holder. It was held by the first appellate court that the said order did not make any effect on the attachment of the land, which was already continuing. Therefore, the subsequent mortgage of the land and the order obtained from the District Judge, Rohtak will not be binding on Shiv Charan Dass defendant. For these reasons, suit of plaintiffs Nos. l and 2 with regard to 33 kanals 2 marlas of land was dismissed. 9. Against the aforesaid judgment and decree, passed by the first appellate court, two Regular Second Appeals were filed. Plaintiffs No. 1 and 2 filed R.S.A. No. 2168 of 1981 against the portion of the judgment of the first appellate court, whereby the decree in their favour passed by the trial court was set aside. 9. Against the aforesaid judgment and decree, passed by the first appellate court, two Regular Second Appeals were filed. Plaintiffs No. 1 and 2 filed R.S.A. No. 2168 of 1981 against the portion of the judgment of the first appellate court, whereby the decree in their favour passed by the trial court was set aside. Defendant Shiv Charan Dass filed the instant R.S.A. (R.S.A. No. 2442-A of 1981) against the portion of the judgment, whereby the judgment and decree of the trial court with regard to 20 kanals 16 marlas of land in favour of plaintiff No. 3 was affirmed. R.S.A. No. 2168 of 1981 filed by plaintiffs No. 1 and 2 was dismissed by this Court on 8.1.1982. However, the instant R.S.A. was admitted by this Court on 19.3.1982. It appears that when this appeal was admitted, it was not brought to the notice of this court that R.S.A. No. 2168 of 1981 has already been dismissed. 10. This appeal has been argued by Daya Kishan, one of the legal representatives of defendant Shiv Charan Dass, who has appeared in person. He has made following submissions :- (a) That the land measuring 23 kanals 4 marlas, of which 20 kanals 16 marlas of land is also a part, was actually transferred by Parma Nand in favour of plaintiff No. 3 Surat Singh on 25.3.1963, when the gift deed was registered and prior to that date, the said land was got attached by Lala Ram on 19.3.1963 in execution of the money decree. Therefore, the courts below have come to the wrong conclusion that before the attachment of the said land, plaintiff No. 3 became owner in possession of the same on the basis of the said gift deed, which has otherwise not been proved. (b) That the judgment and decree dated 16.8.1967 (Ex. P6 and Ex. P7) which was passed in the suit filed by plaintiff No. 3 against decree holder Lala Ram and judgment debtor Parma Nand is not binding upon Shiv Charan Dass as he was not party to the said suit. It was further argued that the appellant Shiv Charan Dass stepped into the shoes of Lala Ram decree holder before passing the aforesaid judgment and decree. It was also argued that the suit filed by plaintiff No. 3 under Order 21 Rule 63 C.P.C., which was decreed vide judgment and decree dated 16.8.1967, (Ex. It was further argued that the appellant Shiv Charan Dass stepped into the shoes of Lala Ram decree holder before passing the aforesaid judgment and decree. It was also argued that the suit filed by plaintiff No. 3 under Order 21 Rule 63 C.P.C., which was decreed vide judgment and decree dated 16.8.1967, (Ex. P6 and Ex. P7) was not maintainable, because the stand of the appellant in the present suit is that the suit land was not attached in the execution and if the suit land was not attached in execution of the decree, then the provision of Order 21 Rule 63 C.P.C. is not applicable. After hearing the appellant in person and going through the record of the case, I do not find any merit in the appeal, as no substantial question of law is involved in this appeal. 11. Undisputedly, the entire suit land measuring 53 kanals 18 marlas was got attached on 19.3.1963 in execution of the money decree of Rs. 1,400/-, passed against Parma Nand, the owner of the suit land, on a suit filed by one Lala Ram. Prior to the said attachment, Parma Nand executed a gift deed on 9.1.1962 in favour of the plaintiff No. 3 Surat Singh and possession of the gifted land was handed over to him. The said gift deed was presented for registration on 10.1.1962, but ultimately it was got registered on 25.3.1963. When the suit land was got attached in the aforesaid money decree by Lala Ram, objections were filed by plaintiff No. 3 Surat Singh under Order 21 Rule 58 C.P.C., which were dismissed on 30.4.1966. Thereafter, in July, 1966, plaintiff No. 3 filed suit under Order 21 Rule 63 C.P.C. (omitted by the Code of Civil Procedure (Amendment), 1976), against decree holder Lala Ram and judgment debtor Parma Nanad, which was decreed on 16.8.1967. It is the case of the appellant that during the pendency of the said suit, he had purchased the money decree from Lala Ram and in this regard, a declaration was obtained by him vide judgment and decree dated 4.1.1967 and thereafter, he moved an application before the Executing Court for recognizing him as transferee decree holder and the said application was allowed on 24.2.1968. Since he had purchased the decree prior to the passing of the decree dated 16.8.1967 in favour of appellant Shiv Charan Dass, therefore, the suit decree will not be binding on him. Undisputedly, the transaction of gift had taken place on 9.1.1962 when the gift deed was executed by Parma Nand in favour of plaintiff No. 3 Surat Singh and possession of the gifted land was handed over and the said gift deed was presented for registration on 10.1.1962. Merely because, it was registered on 25.3.1963, it cannot be presumed that transaction of the gift deed takes effect from the date on which it was registered. In my opinion, the first appellate court has rightly held that the transaction of gift takes effect from the date of its execution and not from the subsequent date of its registration. In view of this finding, since the gift deed was executed on 9.1.1962 prior to the attachment, therefore, even if the said attachment remained continue subsequently, it did not affect the right of plaintiff No. 3. The aforesaid transaction of gift was recognized in the judgment and decree dated 16.8.1967, passed in favour of plaintiff No. 3 and against Lala Ram and Parma Nand. The said suit was filed prior to the purchase of money decree by the appellant and in that suit, a finding was recorded that a gift-deed was validly executed by Parma Nand prior to the attachment of the land and the gifted land cannot be attached and sold in execution of the said money decree. Lala Ram, the original decree holder, from whom the appellant had purchased the said decree, was party to the suit. The finding recorded in that suit, which was decreed in favour of defendant No. 3, is binding on the appellant also, as he has stepped into the shoes of Lala Ram. In this regard, the first appellate Court has given the following reasons :- "The transaction of gift effected by registered document like other transactions takes effect from the date of the execution of the document (gift deed) and not from the subsequent date of the registration of that document. In this regard, the first appellate Court has given the following reasons :- "The transaction of gift effected by registered document like other transactions takes effect from the date of the execution of the document (gift deed) and not from the subsequent date of the registration of that document. The plaintiffs were not supposed to produce the gift deed again in this suit as the rights of Surat Singh donee had already been recognized in respect of 23 kanals 4 marlas of land given in gift to him as against the predecessor-in-interest of Shiv Charan Dass transferee/decree holder. As aforesaid Shiv Charan Dass was recognized as transferee decree holder vide order dated 24.2.1968 Ex.D2. The judgment and decree (copies Ex. P6 and P7 are thus binding on Shiv Charan Dass as well. Even if it is assumed for the sake of argument as submitted by Daya Kishan that Shiv Charan Dass had become transferee of the money decree on the basis of the earlier declaration decree dated 4.1.1967 obtained by him against Lala Ram and referred to in the order Ex.D2 even then the fact remains that the said transfer has been effected during the pendency of the suit culminating in the judgment and decree (copies Ex. P6 and Ex. P7) and as such the finding in the said judgment and decree will be binding on Shiv Charan Dass transferee/decree holder pendente lite. There is thus no escape from the conclusion that the gift of 23 kanals and 4 marlas land as detailed in paragraph 2 of the plaint by Parma Nand in favour of Surant Singh had been made prior to the attachment of the said land and as such the attachment of that land is illegal and it is not liable to be attached and sold in execution of the money decree in question." 12. I do not find any illegality or perversity in the aforesaid finding and reasoning given by the first appellate court. 13. In view of the above, I do not find any merit in the instant appeal, as no substantial question of law is involved in this appeal. Dismissed with no order as to costs. Appeal dismissed.