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2012 DIGILAW 2198 (DEL)

Mohd. Farjam v. Sarfaraz Ahmed

2012-07-05

MANMOHAN SINGH, PRADEEP NANDRAJOG

body2012
JUDGMENT : 1. Respondent No. 1 Sarfaraz Ahmed, claiming to be the owner of the suit property bearing No. L-5, Batla House, Okhla, New Delhi filed a petition seeking eviction of respondent No. 2, Mohd.Rizwan, pleading that he was a tenant under Sarfaraz Ahmed and had sub-let the property. The eviction petition succeeded. Attaining finality, in execution, Sarfaraz Ahmed obtained possession of the property in question. 2. Appellant Mohd. Farjam, claiming to be the owner of the property, stating to have purchased the same from respondent No. 3, Ms. Sehnaz Begum, filed objections before the Additional Rent Controller alleging fraud in obtaining the decree and sought possession. 3. During pendency of the said objections, which we note would be under Order 21 Rule 99 of the Code of Civil Procedure, appellant filed a suit alleging fraud in the decree obtained by respondent No. 1 and sought a declaration that he be declared the owner of the property and that the eviction order passed by the learned Additional Rent Controller be declared void. He sought possession of the subject property. Damages were also claimed. Alternatively, it was claimed that a decree in sum of Rs. 22 lakh be passed, if title of respondent No. 3 was found to be defective. 4. Vide impugned order dated April 20, 2010, the learned Single Judge has held that since issues of title, right and interest in a property in respect whereof a decree has been obtained, were set up by a third party they have to be gone into by the Executing Party; the remedy of the appellant would be to pursue the objections which appellant had filed before learned Additional Rent Controller. 5. Order 21 Rule 99 of the Code of Civil Procedure reads as under: "Dispossession by decree-holder or purchaser.—(1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained." 6. (2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained." 6. Order 21 Rule 101 of the Code of Civil Procedure reads as under: "Question to be determined—All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceedings on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions." 7. Suffice would it be to state that as per the mandate of Rule 101, all questions, including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 99 have to be adjudicated by the Executing Court and this would include a right claimed by a third party i.e. a party not being a party to the original eviction proceeding. 8. The view taken by the learned Single Judge is absolutely correct. 9. Suffice would it be to state that the Executing Court which is seized of the application filed by the appellant would have to decide even the question of fraud. We also highlight that objections filed by the appellant, as law requires, have to be decided following a procedure akin to the procedure to be followed in a suit. 10. We may note that pursuant to the decree obtained by respondent No. 1 against respondent No. 2, apart from dispossessing the appellant some other persons were likewise dispossessed. Objections filed by others were alleging fraud. The Executing Court took a view that it had no jurisdiction to decide the objections inasmuch as rival title and fraud was alleged. The decision of the Executing Court has since been set aside by the learned Rent Control Tribunal vide order dated May 11, 2011 in ARCT No. 49/2008. 11. Objections filed by others were alleging fraud. The Executing Court took a view that it had no jurisdiction to decide the objections inasmuch as rival title and fraud was alleged. The decision of the Executing Court has since been set aside by the learned Rent Control Tribunal vide order dated May 11, 2011 in ARCT No. 49/2008. 11. As regards the claim of the appellant against respondent No. 3 for damages, suffice would it be to state that the appellant would be entitled to damages against respondent No. 3 if objections filed by the appellant fail and it is held that it was respondent No. 1 who was the owner of the subject property and that respondent No. 3 made a fraudulent sale of the suit property in favour of the appellant. 12. We note that vide impugned order the learned Single Judge has granted liberty to the appellant to move an appropriate application before the Executing Court, which obviously mean an application for revival of the objections filed by the appellant. 13. To cut short the controversy, we direct that the application filed by the appellant stands revived. 14. The appeal accordingly stands disposed of. 15. No order as to costs. Appeal disposed of.