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2010 DIGILAW 941 (PNJ)

Karambir Singh v. Inder Singh

2010-02-22

RAKESH KUMAR JAIN

body2010
Judgment Rakesh Kumar Jain, J. 1 This revision petition is against order dated 21.8.2009 passed by Civil Judge (Jr. Division), Karnal whereby objections filed by the petitioner under Order 21 Rule 97 to 103 of the Code of Civil Procedure, 1908 (for short CPC) has been dismissed on the ground that the petitioner is a transferee of property pedente lite, therefore, his objections are not maintainable in view of Order 21 Rule 102 CPC. 2 The pleaded case of the parties is that Inder Singh (respondent No.l) suffered a decree of the property in dispute in favour of his wife-Ratni Devi (respondent No.-2) on 14.6.1993. On the basis of said decree, a mutation was sanctioned in her favour on 1.2.1994. Ratni Devi (respondent No.2) entered into an agreement to sell the property in dispute with Karambir Singh (petitioner) on 30.3.1994 for a total sale consideration of Rs.8,88,750/-, which is alleged to have been paid by the petitioner to respondent No.2, and got the possession. Inder Singh (respondent No.l) challenged the judgment and decree, which is alleged to have been suffered by him in favour of respondent No.2 (Ratni Devi), in a Civil Suit No.446 of 1993 titled Ratni Devi Versus Inder Singh, by way of another Civil Suit No.666 of 1994 on 4.5.1994 titled as Inder Singh V/s. Ratni Devi, in which one of the issue was as to whether judgment and decree dated 14.6.1993 passed in Civil Suit No.446 of 1993 titled as Ratni Devi V/s. Inder Singh, is illegal, having been obtained by fraud? That issue has been decided in favour of Inder Singh and it has been held that decree was obtained by Ratni Devi by fraud. The Civil Suit No.666 of 1994 filed by Inder Singh was decreed by Civil Judge (Junior Division), Karnal by judgment and decree dated 23.8.2002, which was challenged by way of appeal by Ratni Devi in Civil Appeal No. 118 of 2002, which was dismissed by the Additional District Judge, Karnal vide his judgment and decree dated 17.3.2003. 3 Although, the agreement to sell was of 30.3.1994, but no sale deed was executed by Ratni Devi and no action was taken by the petitioner for a period of. 11 years who ultimately filed a suit for specific performance on 3.5.2005 for the purpose of execution of the sale deed, which was decreed ex parte on 26.11.2005 against Ratni Devi. 11 years who ultimately filed a suit for specific performance on 3.5.2005 for the purpose of execution of the sale deed, which was decreed ex parte on 26.11.2005 against Ratni Devi. It is alleged that pursuant to the said judgment and decree, sale deed has also been executed in favour of the petitioner on 12.5.2006 and a mutation has been sanctioned. The dispute arose in this case when Inder Singh (Respondent No.l) had sought to execute the decree dated 23.8.2002 whereby judgment and decree passed in Civil Suit No.446 of 1993 was held to be illegal and was set aside on the ground of misrepresentation and fraud and respondent No. 1 was held entitled to possession of the suit property. Thus, in order to protect his possession, the petitioner filed objections Under Order 21 Rule 97 to 103 of CPC. These objections were challenged on the ground of its maintainability under Order 21 Rule 102 of CPC, which provides that:- "Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person." 4 In this case, admittedly, the property has been transferred pursuant to a decree passed in a suit for specific performance on 26.11.2005, which would fall within the definition of Transfer of Property pedente lite as the decree in favour of Inder Singh (respondent No.l) with regard to possession is prior in time dated 23.8.2002. It is also provided under Section 52 of the Transfer of Property Act that "during the pendency of any suit or proceedings, which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. In the explanation, it is provided that for the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force". Meaning thereby, the aforesaid Section comes into existence from the point of institution of the suit and continues to survive till the satisfaction of the decree. 5 In the present case, suit having been filed by the petitioner on 3.5.2005 during the currency of limitation to seek execution of the decree on 23.8.2002 would mean that any proceeding of transfer from the date of filing of the suit till the date of its execution within a period of limitation of 12 years would be a transferee pendente lite. 6 Insofar as collusiveness of the suit is concerned, Section 52 is not applicable where the suit is collusive but in the present case, there is no dispute that suit filed by Inder Singh against Ratni Devi i.e. Civil Suit No.666 of 1994 is a contested suit, which has even been challenged by Ratni Devi by way of appeal, which has been dismissed on merits. 7 Learned counsel for the petitioner has further submitted that the learned Court below has not followed due procedure while disposing of the objections as no issues have been framed. He also relied upon a decision in the case of "Gram Panchayat, Hassanpur v. Jagdish Chand and others", 2008(1) C.C.C. 364, wherein it has been held that third party objections are to be decided after framing issues and giving opportunity to the parties to lead their evidence in support of their stand. 8 However, in the present case, there is no need for framing any issue as objection petition itself is not found to be maintainable on the facts, which have been narrated by both the parties before the Executing Court. It has been found that the petitioner is a transferee pendente lite, therefore, objections were found to be not maintainable. 8 However, in the present case, there is no need for framing any issue as objection petition itself is not found to be maintainable on the facts, which have been narrated by both the parties before the Executing Court. It has been found that the petitioner is a transferee pendente lite, therefore, objections were found to be not maintainable. 9 In view of the above discussion, I do not find any error on the part of the Civil Judge, Jr. Division, Karnal, in his order dated 21.8.2009. Hence, the present Revision Petition is hereby dismissed.