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2011 DIGILAW 649 (DEL)

Yogender Kumar v. Ram Kishan Gupta

2011-07-05

INDERMEET KAUR

body2011
JUDGMENT Indermeet Kaur, J. 1. The impugned order of the executing court is dated 27.09.2010. The objections filed by the Petitioner/objector (Yogender Kumar and Om Kumar) under Order 21 Rule 97 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as the 'Code') had been dismissed. 2. The Plaintiff/decree holder (Ram Kishan Gupta) had filed a suit for specific performance in terms of an agreement to sell dated 18.03.1988. His contention was that he had entered into an agreement to sell to purchase the suit property i.e. (land measuring 4 bighas 16 biswa bearing in khasra No. 506, situated at Village Naib Sarai, Tehsil Mehrauli, Delhi) from Samay Singh, its erstwhile owner. Part payment had been made and the balance amount of ' 3,85,000/- was yet payable; suit had accordingly been filed. This suit had been decreed in favour of the Plaintiff/ decree holder vide an ex-parte judgment and decree dated 02.05.1990. Sale deed had been executed in favour of the decree-holder on 15.07.2003 which was registered on 08.10.2007 and mutation had also been effected in his name on 12.05.2008. 3. Before the executing court, the present Petitioners/objectors (Yogender Kumar and Om Kumar) had preferred objections under order 21 Rule 97 of the Code. Their contention was that Pushpa Singh had purchased 2100 square yards of constructed land from Samay Singh vide agreement to sell, receipt, power of attorney dated 05.01.1988; the Petitioners had stepped into the shoes of Pushpa Singh by virtue of an agreement to sell and other related documents executed between themselves and Pushpa Singh dated 16.09.2008; they are in peaceful possession of this land since 16.09.2008; they had contested the execution filed by the decree holder and objections as aforenoted had been filed by them along with documentary evidence. 4. The executing court after consideration of the documents of the respective parties had dismissed the objections of the Petitioner; the executing court was of the view that a registered sale deed had been effectedjn favour of the decree holder under the orders of the Court and since mutation of the land had also been effected in favour of the said decree holder, the objections were not maintainable. 5. 5. Counsel for the objectors has vehemently contended that the decree obtained by the decree holder was in fact a fraudulent decree; it is liable to be set aside; Samay Singh was the only Defendant arrayed in the suit; his address had been shown as Village Naib Sarai without any details of the house number or the lane. Attention has been drawn to the order of the High Court dated 19.01.2000 where in the execution proceedings, the High Court had noted that the decree holder has not given the complete address of Samay Singh; it was only thereupon i.e. on 19.01.2000 that the complete address of Samay Singh was disclosed to the Court i.e. he being a resident of H-221, Valmikiwali Gali, Naib Sarai-, Tehsil Mehrauli, Delhi. This was on 19.01.2000. Suit had been filed in the year 1989. Address of Samay Singh in the suit proceedings was only described as Village Naib Sarai, Tehsil Mehrauli, Delhi; house number and details of gali had not been given; Learned Counsel for the Respondent on repeated query has no answer as to how subsequently on 19.01.2000 he learnt about this address of Samay Singh. In the suit proceedings Samay Singh had been proceeded ex-parte; the report of the process server was that he has been served. Learned Counsel for the objector has drawn attention of this Court to the service report of Samay Singh in the execution proceedings which reports are dated 17.08.2022 and 17.09.2002. In the report of process server dated 17.08.2002 it had been recorded that 'bahar chale gaye'; in the report of 17.09.2002, it had been recorded that 'no one lives there'; on these two service reports, the Court had recorded a finding that judgment debtor/Samay Singh stands served. 6. Record clearly shows that the address of Samay Singh had not been correctly depicted in the suit proceedings although it appears to have been known to the Plaintiff and that is how it has disclosed to the High Court on 19.01.2000. Contention of Learned Counsel for the objector is that in these circumstances the ex parte decree has been obtained by playing a fraud upon the court; this submission cannot be ruled out straight away. 7. Contention of Learned Counsel for the objector is that in these circumstances the ex parte decree has been obtained by playing a fraud upon the court; this submission cannot be ruled out straight away. 7. Counsel for the objector has further pointed out that the procedure under Order 21 Rule 97 of the Code postulates that a detailed scrutiny and enquiry has to be conducted by the executing court; it is for this reason that it specifically stipulates that no separate suit is required to be filed; provisions of Order 21 Rules 97 & 98 (c)f the Code are wide enough to enable the executing court to enter into a detailed enquiry to decided the objections of such an objector. In AIR 1996 SC 2050 Babulal v. Raj Kumar and Ors., the Apex Court while adverting to the provisions of Order 21 Rule 98 of the Code read with Rule 103 had held that the procedure to deaf with the objections of an objector is prescribed in the Code itself; the executing court is requjred -to determine the questions which have been urged in a detailed manner. This has been reiterated in AIR 1997 SC 856 Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and Anr. 8. The statutory scheme envisaged under Order 21 Rule 97 of the Code in fact provides a remedy both to the decree holder as well as to the obstructionist/objector to have, their respective say in the matter and to get a proper adjudication done before the executing court which would be binding between the parties and a separate suit would be barred with a view to ensure that multiplicity of proceedings and parallel proceedings are avoided; procedure provided in Order 21 Rules 97 to 103-of the Code is the remedy available to a such concerned party to have their grievance once and for all finally resolved in the execution proceedings. There is no dispute to this proposition. 9. There is no dispute to this proposition. 9. From the perusal of the impugned order it is evident that the executing court has dismissed the objections of the objector under Order 21 Rule 97 of the Code cursorily without giving him a chance to the objector to prove the alleged fraud having been played upon the court by the Plaintiff/decree holder; vehement contention of the objector being that Samay Singh was deliberately not served at his correct address; a vague address has been given in order that the matter could be proceeded ex-parte and the decree could be obtained by the decree holder. 10. It is not in dispute that the objectors are in legal possession of the suit land since 2008; their contention is that they are in legal possession by virtue of an agreement to sell and other' related documents dated 16.09.2008 executed by Pushpa Singh in their favour; Pushpa Singh had derived her title from Samay Singh by virtue of documents executed by Samay Singh in favour of-Pushpa Singh on 05.03.1988; objectors have stepped into the shoes of Pushpa Singh. In these circumstances, the objections raised by the Respondent qua the provisions of Section 102 of the Code (rights of the transferee pendente lite) is of little' relevance as the instant suit was filed in 1989 but Pushpa Singh had allegedly purchased the suit land on 05.01.1988 i.e. prior to the filing of the present suit; the objectors are claiming their right and title through Pushpa Singh which is prior in time to the filing of the present suit. Section 102 would thus have no relevance. Judgment relied upon by Learned Counsel for the Respondent reported in 2008 V AD (SC) 201 Usha Sinha v. Dina Ram and Ors. is thus inapplicable. 11. The contention of Learned Counsel for the Respondents that even assuming that documents had been executed by Pushpa Singh in favour of the present objector yet Pushpa Singh herself was only a power of attorney holder of Samay Singh and as such documents executed by Pushpa Singh in favour of the present objectors is hit by the provisions of Sections 32 & 33 of the Registration Act, 1908 and for this proposition reliance has been placed upon AIR 1987 Mad 239 Sekar Mudaliar v. Shajathi Bi and Anr. This aspect cannot be gone into at this stage; this would also require adjudication and a detailed scrutiny. 12. Lastly it has been pointed out that a separate suit bearing No. 1657/2009 seeking cancellation of sale deed dated 15.07.2003 has been filed by Pushpa Singh and is pending in the Court of District Judge, Saket; in those proceedings, the present objectors who were initially arrayed as Defendants have been transposed as Plaintiffs; it is pointed out by Learned Counsel for the Respondent that the objection now raised in this Court can be adjudicated in those proceedings. This Court is not inclined to agree to this submission of Learned Counsel for the Respondent. It is the threat of execution which is pending before the executing court where the present objectors are at sufferance; that threat cannot be taken care of in the suit pending in the Saket Court. That apart Learned Counsel for the Petitioner submits that they would not be pressing the said suit and in fact would seek permission of the Court to withdraw the said suit pending in the court of District Judge, Saket. 13. In view of the aforenoted contentions raised by respective parties, this appears to be a fit case where the matter should be remanded to the executing court to enter into a detailed enquiry and examine the objections of the objector giving him an opportunity to adduce evidence, if required to prove, the alleged fraud committed by the Plaintiff/decree holder in obtaining the ex parte decree against Samay Singh. The procedure contained in Order 21 Rules 97 & 98 of the Code read with the ratio of the judgments in Babu Lai (Supra) and Brahmdeo Chaudhary (Supra) shall be strictly adhered to. 14. Execution petition is allowed and disposed of in the above terms. The parties to appear before the District Judge, Saket who shall make an endevour to dispose of the objections within an outer limit of six months from the receipt of the order.