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2012 DIGILAW 1613 (PAT)

Dharmshila Devi v. Rahul Sharma

2012-12-04

JYOTI SARAN

body2012
CAV ORDER Heard Mr. Shivnandan Roy, learned counsel appearing on behalf of the petitioner and Mr. Pramod Manbansh, learned counsel for the respondents. 2. With the consent of the parties the matter has been taken up for disposal at the stage of admission. 3. This application under Article 227 of the Constitution of India has been filed questioning the order dated 5.6.2012 passed by learned Sub Judge IV, Begusarai in Misc. Case No. 19 of 2011 arising from Title Execution Case No. 3 of 1995 whereby the learned Court below has been pleased to dismiss the Misc. case filed on behalf of the petitioner under Order 21 Rule 97 of the Code of Civil Procedure at the stage of admission. 4. For appreciating the matter in issue it would be necessary to exposit the brief facts of the matter which are germane to the issue under consideration. 5. The Execution Case No.3 of 1995 finds its origin to a judgment and decree passed in Title Suit No.165 of 1986 filed by the father of the respondent Nos. 1,2 and 4 and husband of respondent No.3 namely, Late Nawal Kishore Sharma. The suit had been filed for specific performance to enforce an agreement for sale dated 21.5.1986 stated to have been executed by one Hari Lal Sah the father of respondent Nos. 6 and 7 and Shakunti Devi wife of Ram Chandra Sah father of respondent Nos. 8 and 9 herein, in favour of late Nawal Kishore Sharma in relation to land bearing Khata No.66 Khesra No.38 Thana No. 383 Tauzi No. 5152 Mauza Mirganj District Begusarai measuring about 2 kathas. The title suit was decreed ex parte as against the defendants by judgment and decree dated 5.9.1988 and 26.11.1988 respectively. 6. Following the judgment and decree aforesaid passed in the title suit, an application under Order 9 Rule 13 of the Code was filed by Shakunti Devi giving rise to Misc. Case No.4 of 1989 and which was dismissed by judgment and order dated 18.5.1992. A Misc. Appeal bearing No. 30 of 1992 preferred by the judgment debtors was also dismissed on 5.7.1994 and against which a civil revision was filed bearing C.R. No. 1343 of 1994 before this Court which also was dismissed on 3.9.1996. Case No.4 of 1989 and which was dismissed by judgment and order dated 18.5.1992. A Misc. Appeal bearing No. 30 of 1992 preferred by the judgment debtors was also dismissed on 5.7.1994 and against which a civil revision was filed bearing C.R. No. 1343 of 1994 before this Court which also was dismissed on 3.9.1996. A sale deed was executed in the light of the agreement to sale through the process of the Court on 28.6.1996, copy whereof is placed at Annexure-A to the counter affidavit of the respondent 1st set-decree holders. Even the Special Leave Petition filed before the Supreme Court bearing SLP No. 21533 of 1997 by the judgment debtors was dismissed on 5.12.1997. 7. In between, the daughters of Shakunti Devi executed two sale deeds on 2.7.1996 in favour of the petitioner for an area of 6 dhurs within the suit property which was subject matter of Title Suit No. 165 of 1986. The petitioner herein on the strength of the sale deeds dated 2.7.1996, filed an application in the execution proceedings under Order 21 Rule 97 of the Code of Civil Procedure and which has been rejected by the learned Court below on grounds that it was a deliberate attempt by the judgment debtors to deny the fruits of decree to the decree holders even after having lost their contest upto the Supreme Court. Thus the present application. 8. Mr. Shivnandan Roy, learned Senior counsel submits that notwithstanding the judgment and decree passed in the title suit preferred by the father of the decree holders as against the mother and uncle of the vendors of the petitioner and the execution of the sale deed through the process of the Court on 28.6.1996, it would not have any binding effect on the right, title and interest of the vendor of the petitioner in the ancestral property. It is submitted that the father of the vendor of the petitioner namely Ram Chandra Sah deceased 32 years back and thus the daughters i.e the respondent Nos. 8 and 9 along with their mother Shakunti Devi derived ownership in the property of Ram Chandra Sah. It is contended that as the daughters i.e. respondent Nos. 8 and 9 along with their mother Shakunti Devi were co-owners of the property hence Shakunti Devi alone had no right to make any transfer in excess of her share. 8 and 9 along with their mother Shakunti Devi derived ownership in the property of Ram Chandra Sah. It is contended that as the daughters i.e. respondent Nos. 8 and 9 along with their mother Shakunti Devi were co-owners of the property hence Shakunti Devi alone had no right to make any transfer in excess of her share. It is thus sought to be canvassed that even if the judgment and decree as regarding the specific performance has attained finality, it would not act adverse to the right, title and interest of the vendors of the petitioner in the property devolved on them after the death of their father Ram Chandra Sah and thus there was no infirmity in the transfer made by them in favour of the present petitioner even if it was a part of the suit property in Title Suit No. 165 of 1986. It was further contended that since the vendors of this petitioner were not party to the earlier round of litigations hence they cannot fall in the category of judgment-debtors and since the transfer in favour of the petitioner is subsequent to the judgment and decree hence the bar of Rule 102 of Order 21 would not apply in the case of the petitioner. 9. Mr. Roy next submitted that there is a stark distinction between a co-sharer and co-ownership. It was submitted that although the proportion of share in case of a co-sharer, is dependent upon the death of a co-sharer but in the case of co-ownership it remains the same. It was submitted that upon the death of Ram Chandra Sah, the husband of the judgment debtor Shakunti Devi, she did not become the Karta of the property of Ram Chandra Sah rather had the interest in the property of Ram Chandra Sah which devolved by way of a co-ownership along with her daughters Arti and Bharti, the respondent Nos. 8 and 9 herein who are the vendor of the petitioner. 10. Mr. Roy further submitted that even if respondent Nos. 8 and 9 did not stake claim in the property of their father Late Ram Chandra Sah they can not be ousted on this score and the devolution and the ownership would be automatic. 11. Mr. 8 and 9 herein who are the vendor of the petitioner. 10. Mr. Roy further submitted that even if respondent Nos. 8 and 9 did not stake claim in the property of their father Late Ram Chandra Sah they can not be ousted on this score and the devolution and the ownership would be automatic. 11. Mr. Roy questioned the pregnability of the order impugned also on grounds of having been passed without holding any enquiry as required under Rules 98 to 101 of Order 21. It was submitted that the issue as canvassed before this Court having been raised before the Executing Court, the case of the petitioner should not have been rejected at the admission stage without holding an enquiry. It was submitted that the petitioner had raised issues of law which required examination as well as evaluation of evidence and could not have been dismissed summarily as having been done in the present case. 12. Learned counsel in support of his submissions that the order impugned in absence of proper enquiry as required under Rules 98 to 101 of Order 21, was unsustainable, has relied upon the following judgments of the Supreme Court :- (1) (1995)5 SCC 238 (G. Gangadhar Vs. B.R. Rajalingam) paras 7 & 8 (2) (1995)1 SCC 6 (Bhanwar Lal Vs. Satyanarain and Anr.) paras 7 and 8 (3) (2002) 7 SCC 50 (Tanzeem-e-Sufia Vs Bibi Haliman and Ors.) paras 11 & 12 13. In response to the statutory provisions of Rule 102 of Order 21 debarring pendente lite purchasers from invoking the provisions of Order 21 Rule 97, learned counsel submitted that the rules are applicable to only such of the transfer pendente lite which has taken place during the suit proceedings and not at execution stage. It was sought to be canvassed that execution proceedings are distinct and separate from a suit proceeding and since the transfer in question has taken place at the stage of execution proceedings, hence the bar of Rule 102 of Order 21 of the Code would not apply to the case of the petitioner. 14. The submissions of Mr. Roy has been contested by Mr. 14. The submissions of Mr. Roy has been contested by Mr. Pramod Manbash, learned counsel for the decree holders, who submitted that the attempt of the judgment debtors has all along been to deny the fruits of the decree to the decree holders and the case in hand is another attempt in the said direction. It was submitted that the judgment debtors having lost their contest upto the Supreme Court, have now mischievously adopted a new tactic to obstruct the delivery of possession of the decreetal property even after the judgment and decree and at the stage of execution proceedings by making illegal transfers and prompting the purchasers to prefer the application under Order 21 Rule 97 of the Code. It is submitted that the learned Court below having understood the nefarious design of the judgment debtors, correctly rejected the application and the impugned order does not call for any interference. It was submitted that the judgment and decree having been passed as back as in the year 1988, a period of almost 24 years having passed, the decree holders are yet to enjoy the fruits thereof. 15. Mr. Pramod Manbansh, responding to the contention of Mr. Roy that the daughters of Ram Chandra Sah had independent share in his property and their share in the property could not have been transferred by their mother, submitted that a suit for specific performance is binding on the legal heirs also and thus the daughters of the vendor Shakunti Devi cannot wriggle out by this situation. He relied upon judgment of the Madras High Court reported in AIR 2004 Madras 249 (R. DevadassVs. Subordinate Judge, Ponneri and others). It was further submitted that the sale deed having been executed through the process of the Court on 28.6.1996 with no challenge thereto by the respondent Nos. 8 and 9, it is only when steps were taken for effecting delivery of possession of the suit property to the decree holders that the daughters of the judgment debtors Shakunti Devi, hastily executed the sale deed in favour of the petitioner on 2.7.1996. It was submitted that one Rahul Kumar also a vendee from respondent Nos. 8 and 9, it is only when steps were taken for effecting delivery of possession of the suit property to the decree holders that the daughters of the judgment debtors Shakunti Devi, hastily executed the sale deed in favour of the petitioner on 2.7.1996. It was submitted that one Rahul Kumar also a vendee from respondent Nos. 8 and 9 upon rejection of his prayer before the Executing Court, had approached this Court through Civil Revision No. 1361 of 1997 and which was dismissed by order dated 29.8.1997 with a direction to the Executing Court to grant delivery of possession to the decree holders without entertaining any frivolous objections. The copy of the order is placed at Annexure-C to the counter affidavit. 16. The said Rahul Kumar again thereafter filed an application under Order 21 Rule 97 and which again was dismissed by order dated 30.07.2011 placed at Annexure- E to the counter affidavit of the decree holders and against which it is stated at the bar that he has preferred an appeal. Learned counsel thus sought to submit that the sequence of events and the circumstances engulfing the present case makes it more than eloquent that the judgment debtors are trying by tooth and nail to deprive the decree holders the delivery of possession over the suit property. 17. Mr. Roy in reply, with reference to the submission made in paragraph 9 of the writ application, submits that the entire share allotted in favour of Shakunti Devi and her daughters i.e. respondent Nos. 8 and 9 was 2 kathas and that by mutual consent they distributed the property among themselves whereby the respondent Nos. 8 and 9 got 13 dhurs each together with land and brick built Khaprapose house and their mother Shakunti Devi since deceased, got 14 dhurs of land with brick built khapara pose house. It was contended that the decree holders realising the legal status of the petitioners had initially filed a title suit bearing Title Suit No. 117 of 1996 against the petitioner and others for determination of title but the suit was dismissed as withdrawn on 4.9.1999. 18. I have heard learned counsel for the parties and have perused the materials on record. 19. 18. I have heard learned counsel for the parties and have perused the materials on record. 19. It is rather surprising that the vendor of the petitioner through whom the petitioner seeks to claim his right, title and interest in the property, have never chosen to question either the judgment and decree passed in Title Suit No. 165 of 1986 or the sale deed executed through the process of Court on 28.6.1996 in pursuance to the agreement for sale dated 28.5.1986, executed by the mother of respondent Nos. 8 and 9 and their uncle Harilal Sah. Even Mr. Roy, while submitting that the devolution of property consequent upon the death of the father of respondent Nos. 8 and 9 Ram Chandra Sah, was automatic and that the mother had no business to transact anything in excess of her share, could not satisfy the Court, the reasons as to why the respondent Nos. 8 and 9 have not chosen to question the judgment and decree or the sale deed dated 28.6.1996. The petitioner, taking a cue on the basis of a sale deed dated 2.7.1996 executed by the respondent No. 8 and 9 much after the sale deed in relation to the land in question having been executed through the process of the Court in favour of the opposite parties 1st set on 28.6.1996, neither can maintain any application under Order 21 Rule 97 of the Code for obstructing the delivery of possession under the judgment and decree passed in the said title suit nor can claim any right under the sale deed dated 2.7.1996 until such time. 20. Mr. Roy has only tried to circumscribe the provisions of Order 21 Rule 102 of the Code when he submits that the provisions only apply to the transfers made during the pendency of the suit and not to the transfers made at the stage of execution which is manifestly not the legislative intent of the provisions. If the submission of Mr. Roy is to be accepted, every losing contestant in a proceeding would take recourse to transfer in favour of a third party after pronouncement of judgment and decree with malafide intent to deprive the fruits of the decree to the decree-holder. Such limited expression to the provisions of Rule 102 of Order 21 of the Code cannot be given as submitted by Mr. Roy. Such limited expression to the provisions of Rule 102 of Order 21 of the Code cannot be given as submitted by Mr. Roy. In fact whether or not the respondent Nos. 8 and 9 had a share in the property or whether they relinquished their share in favour of their mother are issues which cannot be a subject matter of the execution proceeding. These issues were never raised by the respondent No.8 or 9 at any stage of the proceeding, and then permitting the petitioner to raise these issues in execution proceedings would be enlarging the scope of a proceeding envisaged under Order 21 Rule 97 of the Code. Although Mr. Roy had submitted that since the respondent Nos. 8 and 9 were not parties to the Title Suit No. 165 of 1986 hence they could not be brought within the category of judgment-debtors but he could not respond to any authoritative pronouncement on the submission made by Mr. Manbansh relying upon the judgment of the Madras High Court in the Case of R. Devadass Vs. Subordinate Judge, Ponneri and others (supra) that a decree in a suit for specific performance is binding upon the legal heirs of a judgment-debtor. 21. The petitioner thus being a purchaser from a judgment- debtor neither can save the situation on grounds that the transaction was made at the execution stage and thus is not covered by the provisions of Order 21 Rule 102 of the Code nor can make any complain regarding absence of proper enquiry by the Court below once it is established that he is a purchaser pendente lite. The entire submission made by Mr. Roy in the present case stand answered by a judgment of the Supreme Court rendered in a case of Usha Sinha Vs. Deena Ram reported in (2008) 7 SCC 144 . I am tempted to refer to some paragraphs of the judgment which completely answer the issues posed in the present proceedings. “17. Rule 102 clarifies that Rules 98 and 100 of Order 21 of the Code do not apply to transferee pendente lite. That rule is relevant and material and may be quoted in extenso: “102. I am tempted to refer to some paragraphs of the judgment which completely answer the issues posed in the present proceedings. “17. Rule 102 clarifies that Rules 98 and 100 of Order 21 of the Code do not apply to transferee pendente lite. That rule is relevant and material and may be quoted in extenso: “102. Rules not applicable to transferee pendente lite- 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.” Bare reading of the rule makes it clear that it is based on justice, equity and good conscience. A transferee from a judgment debtor is presumed to be aware of the proceedings before a Court of law. He should be careful before he purchases the property which is the subject matter of litigation. It recognizes the doctrine of lis pendens recognized by Section 52 of the Transfer of Property Act, 1882*. Rule 102 of Order 21 of the Code thus takes into account the ground reality and refuses to extend helping hand to purchasers of property in respect of which litigation is pending. If unfair, inequitable or undeserved protection is afforded to a transferee pendente lite, a decree-holder will never be able to realize the fruits of his decree. Every time the decree-holder seeks a direction from a Court to execute the decree, the judgment- debtor or his transferee will transfer the property and the new transferee will offer resistance or cause obstruction. To avoid such a situation, the rule has been enacted. 18. Before one and half century, in Bellamy v. Sabine, Lord Cranwoth, L.C. proclaimed that where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind require that the decision of the Court in the suit shall be binding not only on the litigating parties, but also on those who derive title under them by alienations made pending the suit, whether such alienees had or had not notice of the pending proceedings. If this were not so, there could be no certainty that the litigation would ever come to an end. 19. If this were not so, there could be no certainty that the litigation would ever come to an end. 19. Keeping in view the avowed object, the expression “transferee from the judgment debtor” has been interpreted to mean the “transferee from a transferee from the judgment-debtor [vide Vijayalakshmi Leather Industries (P) Ltd. Vs. K. Narayanan]* 20. In Vijayalakshmi Leather Industries it was urged that the provisions of Rules 98 and 100 of Order 21 of the Code had limited application to the transferee of the judgment-debtor and could not extend to “a chain of transactions” where the transferee of the judgment-debtor had transferred his interest. 21. Referring to statutory provisions and case-law, the Court negatived the contention, stating: (Vijayalakshmi case, AIR p.206, para 13) “13. If such contention of the learned senior counsel for the appellant is to be accepted, then we are closing our eyes regarding the intention of the statute. It is obvious while interpreting the provisions of the statute, the court must give due weight to the intention of the statute in order to give effect to the provisions. If any narrow interpretation is given and thereby the purpose of the statute is being defeated, the courts must be careful to avoid such interpretations. If we look at Section 52 of the Transfer of Property Act and Rule 102 of Order 21 C.P.C, it is very clear that the intention of the Parliament with which the statute had been enacted is that the rights of one of the parties to the proceeding pending before the court cannot be prejudiced or taken away or adversely affected by the action of the other party to the same proceeding. In the absence of such restriction one party to the proceeding, just to prejudice the other party, may dispose of the properties which is the subject- matter of the litigation or put any third party in possession and keep away from the court. By such actions of the party to the litigation the other party will be put to more hardship and only to avoid such prejudicial acts by a party to the litigation these provisions are in existence. When in spite of such statutory restrictions, for the transfer of the properties, which are the subject- matter of litigation by a party to the proceeding, the courts are duty-bound to give effect to the provisions of the statute.” 22. When in spite of such statutory restrictions, for the transfer of the properties, which are the subject- matter of litigation by a party to the proceeding, the courts are duty-bound to give effect to the provisions of the statute.” 22. The above observations, in our opinion, lay down correct proposition of law. 23. It is thus settled law that a purchaser of suit property during the pendency of litigation has no right to resist or obstruct execution of decree passed by a competent Court. The doctrine of “lis pendens” prohibits a party from dealing with the property which is the subject matter of suit. “Lis pendens” itself is treated as constructive notice to * AIR 2003 Madras 203 a purchaser that he is bound by a decree to be entered in the pending suit. Rule 102, therefore, clarifies that there should not be resistance or obstruction by a transferee pendente lite. It declares that if the resistance is caused or obstruction is offered by a transferee pendente lite of the judgment debtor, he cannot seek benefit of Rule 98 or 100 of Order 21. 24. In Silverline Forum Pvt. Ltd. v. Rajiv Trust, (1998) 3 SCC 723 , this Court held that where the resistance is caused or obstruction is offered by a transferee pendente lite, the scope of adjudication is confined to a question whether he was a transferee during the pendency of a suit in which the decree was passed. Once the finding is in the affirmative, the Executing Court must hold that he had no right to resist or obstruct and such person cannot seek protection from the Executing Court. The Court stated; (SCC pp.727-28, para 10) "10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions „arising between the parties to a proceeding on an application under rule 97 or rule 99? shall be determined by the executing court, if such questions are „relevant to the adjudication of the application?. A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. shall be determined by the executing court, if such questions are „relevant to the adjudication of the application?. A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act." (emphasis supplied) # [See also Sarvinder Singh v. Dalip Singh ] 25. We are in respectful agreement with the proposition of law laid down by this Court in Silverline Forum. In our opinion, the doctrine is based on the principle that the person purchasing property from the judgment-debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree. Resistance at the instance of transferee of a judgment debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated. 26. For invoking Rule 102, it is enough for the decree- holder to show that the person resisting the possession or offering obstruction is claiming his title to the property after the institution of the suit in which decree was passed and sought to be executed against the judgment- debtor. If the said condition is fulfilled, the case falls # (1996) 5 SCC 539 within the mischief of Rule 102 and such applicant cannot place reliance either on Rule 98 or Rule 100 of Order 21. 31. As observed in Silverline Forum, a limited inquiry in such cases is whether the transferee is claiming his right through the judgment-debtor.” 22. If the said condition is fulfilled, the case falls # (1996) 5 SCC 539 within the mischief of Rule 102 and such applicant cannot place reliance either on Rule 98 or Rule 100 of Order 21. 31. As observed in Silverline Forum, a limited inquiry in such cases is whether the transferee is claiming his right through the judgment-debtor.” 22. In view of the discussions aforesaid, I neither find merit in the contentions advanced by learned counsel appearing on behalf of the petitioner nor find even barest possible reason to interfere with the order impugned. 23. In the result this application is dismissed but without any order as to costs.