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2008 DIGILAW 835 (GAU)

Rajen Haloi v. Jagannath Bhattacharjya

2008-12-03

AMITAVA ROY

body2008
JUDGMENT Amitava Roy, J. 1. The order dated 30.4.2008 passed by the learned Civil Judge, Nalbari, in Title Execution Case No. 7/2007 allowing the application for execution filed by the respondent decree holder by rejecting the objections raised on behalf of the petitioners is under challenge in the instant proceeding. The present petition was initially instituted by one Shri Rajen Haloi, judgment debtor in Title Suit No. 12/2004 and Smt. Renu Barman, petitioner No. 2 who claimed to have purchased the suit land in between alter the decree in question. 2. I have heard Mr. D. Choudhury, Learned Counsel for the petitioners and Mr. P.M. Deka, Learned Counsel for the respondent/plaintiff. 3. The facts in brief are that the respondent plaintiff had instituted the aforementioned suit against Shri Rajen Haloi and another praying for a decree inter alia for specific performance of the contract for sale and restraining him (defendant No. 1) from conveying the suit property to the defendant No. 2 or any other person. Having regard to the issues raised for adjudication it is not essential to dilate on the pleadings of the parties. Suffice it would be to mention that the claim was resisted by the defendant No. 1 and the learned trial court on a consideration of the materials on record by judgment and order dated 13.12.2005 decreed the suit in the following terms. In the result, the suit stands decreed on contest with costs against the defendant No. 1. It is directed that the defendant No. 1 would execute the sale deed in favour of the plaintiff after receiving the balance consideration money of Rs. 34,000 within forty five days from the date of this judgment failing which the plaintiff will get the same executed through court after depositing the consideration money in the court. On executing of the sale deed, the plaintiff shall be entitled to get possession over the suit land. Prepare decree accordingly. 4. Thereby the defendant No. 1 was required to execute a sale deed in favour of the respondent plaintiff after receiving the balance price of Rs. 34,000 within forty five days from the date of the judgment failing which the latter could get the same executed through the court after depositing the aforementioned amount. The respondent plaintiff was also endowed with the right to obtain possession of the suit land on the execution of the sale deed as above. 34,000 within forty five days from the date of the judgment failing which the latter could get the same executed through the court after depositing the aforementioned amount. The respondent plaintiff was also endowed with the right to obtain possession of the suit land on the execution of the sale deed as above. Admittedly this determination of the trial court has remained unassailed and has therefore by this time attained finality. 5. The respondent-plaintiff thereafter instituted Title Execution Case No. 2 of 2006. Though he deposited the balance amount of Rs. 34,000 in the proceeding the judgment debtor refused to accept the same and in turn remitted in court an amount of Rs. 30,000 received by him by way of advance towards the transaction. It was inter alia contended by the judgment debtor that the decree holder having failed to deposit the balance amount of Rs. 34,000 within forty five days of the date of the decree it had been rendered in executable. 6. The learned executing court after hearing the Learned Counsels for the parties and on a consideration of the pleaded facts and on a perusal of the records of the suit rejected the objection by its order dated 24.8.2006. It observed that though the decree holder had not deposited the balance consideration price within forty five days of the decree-he meanwhile had submitted an application seeking extension of time therefore on which no order had been passed. The decree holder, however, deposited the said amount thereafter with a prayer for execution of the decree. The learned executing court in the above premise was disinclined to penalize the decree holder for the inadvertent omission to attend to his application for extension of time and while rejecting the objections raised fixed the execution case for necessary steps on 21.9.2006. The order sheet of the execution case, however, reveals that thereafter the decree holder defaulted to take steps on various dates and eventually on 22.1.2007, the learned Executing court noticing his persistent failings dismissed the execution case for default. 7. The respondent plaintiff decree holder after about seven months therefrom submitted a fresh application for execution, which was registered as Execution Petition No. 7/2007 and by order dated 20.8.2007 the learned Executing court being mindful of the dismissal of the earlier case as aforesaid permitted resumption of the proceedings subject to the payment of cost of Ms. 200. 7. The respondent plaintiff decree holder after about seven months therefrom submitted a fresh application for execution, which was registered as Execution Petition No. 7/2007 and by order dated 20.8.2007 the learned Executing court being mindful of the dismissal of the earlier case as aforesaid permitted resumption of the proceedings subject to the payment of cost of Ms. 200. Though this order was not immediately challenged by the judgment debtor, he lodged an objection under Section47 of the Civil Procedure Code ('the Code') read with Section 151 of the Code questioning the maintainability of the fresh proceeding reiterating his remonstrance raised earlier against the executability of the decree for the respondent/plaintiff's failure to deposit the balance amount of consideration price within the time fixed by the court. The present petitioner No. 2 joined him in the resistance by filing an application under Order XXI, Rule 97 read with Section 151 thereof averring in particular that following the dismissal of the earlier execution case, the land involved had in the meantime been demised to her vide a registered sale deed dated 24.4.2007 after obtaining necessary permission from the Deputy Commissioner, Nalbari. The learned executing court on an analysis of the pleaded facts and the objections raised by the impugned order has rejected the objections allowing the application with cost. Thereby the learned executing court also declared the sale deed in favour of the petitioner No. 2 to be null and void and directed issuance of a precept to the concerned Sub-Registrar for cancellation thereof. 8. Mr. Choudhury has assiduously urged that the earlier Title Execution Case No. 2 of 2006 having once been dismissed for the failure on the part of the respondent plaintiff to take necessary steps, the belated froth application for the same purpose is per se not maintainable in law and consequently the impugned order is ineffective and non est in law. While insisting that in any view of the matter, the decree has been rendered in executable for the failure of the respondent plaintiff to deposit the balance consideration price in time, the Learned Counsel has contended that the learned court below acted without jurisdiction in adjudging the sate in favour of the petitioner No. 2 to be null and void. 9. Mr. 9. Mr. Deka in reply has argued that the impugned order does not suffer from any illegality what so ever and considering the sequence of events, the instant petition is visibly a desperate endeavour to further delay the execution proceeding and, therefore, the same ought not to be entertained either in the revisional or supervisory jurisdiction of this Court. 10. The pleadings available and the arguments advanced have been duly taken note of. As observed hereinbefore the decree involved presently is binding on the parties. The learned executing court by order dated 24.8.2006 passed in Title Execution No. 2/2006 had negatived the objection raised on behalf of the judgment debtor pertaining to the failure of the decree holder to deposit the balance consideration money within the time initially fixed by the court. In determining the same, the learned Executing court had taken note of his prayer for extension of time therefore and the omission to pass any order thereon. The learned Executing court, therefore, declined to sustain the objection to avoid prejudice to the decree holder for the unintentional omission on the part of the court in this regard. This order also remained unassailed by the judgment debtor and in the present petition though a faint endeavour has been made to denounce it, no relief for invalidation thereof has been claimed. In the above premise this Court is not inclined to entertain any challenge thereto at this point of time. Acceptance of the deposit of the balance consideration price by the decree holder and the rejection of the judgment debtor's prayer for refund of the advance money received by him thus has to be construed as final as well. 11. The fact that thereafter Title Execution Case No. 2 of 2006 was dismissed for default for want of steps by the decree holder is a matter of record whereafter a separate application for execution was filed which was registered as Title Execution No. 7 of 2007. The learned Executing court by the order dated 20.8.2007 resumed the proceeding. Though the bar of revival of the earlier proceeding and/or initiation of a fresh one has been sought to be repudiated with reference to Order XXI, Rules 105 and106 of the Code, the same in the estimate of this Court lacks substance. The learned Executing court by the order dated 20.8.2007 resumed the proceeding. Though the bar of revival of the earlier proceeding and/or initiation of a fresh one has been sought to be repudiated with reference to Order XXI, Rules 105 and106 of the Code, the same in the estimate of this Court lacks substance. The dismissal of the earlier execution case was evidently on a date on which it was not fixed for hearing as the adjudication of the objections raised was complete on 24.8.2006. On the date of its dismissal i.e., 22.1.2007 it was fixed for steps by the decree holder. Order XXI, Rules 105 and 106 of the Code therefore has no application to the facts of the case. Consequently it was not incumbent on the part of the decree holder to re-approach the Executing court with an application for revival of the earlier proceeding within the period of 30 days from the date of the dismissal as mandated by Order XXI, Rule 106 of the Code. 12. This view is reinforced by the rendering of the Madhya Pradesh High Court in Khoobchand Jain and Anr. v. Kashi Prasad and Ors. AIR 1986 MP 66 . 13. The documents presently on record demonstrate that the decree holder had filed a fresh application for execution, which was registered as Title Execution Case No. 7. of 2007. 14. The Apex Court in Shivashankar Prasad Shah and Ors. v. Baikunth Nath Singh and Ors. (1969) 1 SCC 718 while dwelling on the principle of res judicata as applicable to execution proceedings had propounded that dismissal of such a proceeding for default of the decree holder does not bar the execution of the decree in pursuance of a fresh execution petition filed in accordance with law though by that time the judgment debtor had resisted the execution on one or more grounds. The plea against maintainability of the fresh execution case or revival of the earlier proceeding as the case may be in the face of the judicial pronouncements noticed hereinabove, therefore, cannot be sustained. 15. The plea against maintainability of the fresh execution case or revival of the earlier proceeding as the case may be in the face of the judicial pronouncements noticed hereinabove, therefore, cannot be sustained. 15. The petitioner No. 2 seeks to resist the execution of the decree on the ground of having acquired right, title and interest in the suit land on the strength of purchase thereof by a registered sale deed dated 24.4.2007 at a time when the earlier execution case had remained dismissed for the lapse on the part of the decree holder. No appeal having been preferred against the decree or challenge projected against the order dated 24.8.2006 till then, the same (decree) cannot be deemed to have been effaced by the dismissal of the earlier execution case. The purported sale of the suit land by the judgment debtor in favour of the petitioner No. 2 is therefore clearly hit by the doctrine of lis pendens. Permission for the transaction by the Deputy Commissioner, Nalbari, is thus of no validating relevance. 16. The Apex Court in Usha Sinha v. Dina Ram and Ors. (2008) 7 SCC 144 while assaying the amplitude and purport of Order XXI, Rule 102 vis-a-vis the statutory scheme pertaining to the resistance to the delivery of possession of an immovable property to decree a holder or auction purchaser has propounded that a purchaser of suit property during the pendency of a suit or proceeding has no right to obstruct the execution of a decreed property. Their Lordships held that "lis pendens" is a constructive notice to a purchaser that he is bound by a decree and prohibits a party from dealing with the property, which is the subject-matter of a suit. It was held that Rule 102, therefore, mandates against any resistance or obstruction by a transferee pendente life and declared that such a person cannot seek the benefit of Rule 98 or Rule 100 of Order XXI. While reaffirming its view in Silverline Forum (P.) Ltd. v. Rajiv Trust and Anr. (1998) 3 SCC 723 , it was enunciated that order XXI, Rule 102 being based on justice, equity and good conscience, exclusion of such a transferee from offering any resistance or objection either under Rule 97 or Rule 99 is based on the salutary principle embodied in Section 52 of the Transfer of Property Act, 1882. 17. (1998) 3 SCC 723 , it was enunciated that order XXI, Rule 102 being based on justice, equity and good conscience, exclusion of such a transferee from offering any resistance or objection either under Rule 97 or Rule 99 is based on the salutary principle embodied in Section 52 of the Transfer of Property Act, 1882. 17. In view of the above emphatic elucidation, the assertion against the excitability of the decree raised on behalf of the petitioner No. 2 is patently untenable. In the above factual and legal perspectives, the challenge to the order impugned lacks in substance. The petition, therefore, is rejected. No costs. Petition dismissed.