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2014 DIGILAW 1078 (HP)

Dayal Singh v. Bhinder Kaur

2014-08-12

RAJIV SHARMA

body2014
JUDGMENT : - Rajiv Sharma, Judge (oral). This revision petition is directed against judgment dated 23.6.2012, rendered by District Judge, Solan in Civil Appeal No. 42-NL/13 of 2011. 2. “Key facts” necessary for the adjudication of this writ petition are that the respondent has instituted a civil suit No. 16/1 of 1995/91 against the petitioners for declaration with consequential relief of permanent injunction or in the alternative for possession claiming herself to be heir of Ram Swaroop. The suit was contested by the petitioners that Ram Swaroop has executed a valid “will” in their favour. Learned trial Court dismissed the suit on 14.8.1997. Respondent filed an appeal in the Court of learned District Judge, Solan bearing appeal No. 34-NL/13 of 1997. Learned District Judge allowed the appeal on 19.8.1998. Petitioners preferred a Regular Second Appeal bearing No. 394 of 1998, before this Court against the judgment dated 19.8.1998. The same was dismissed by this Court on 22.12.2008. It is not disputed that no appeal was preferred against the judgment dated 22.12.2008 rendered in RSA No. 394/1998. Respondent filed an execution petition for the execution of the judgment and decree. Petitioners filed objections against the same. Learned Civil Judge (Junior Division) dismissed the objections and issued warrant of possession for 17.12.2011 vide order dated 17.11.2011. Petitioners filed an appeal against order dated 17.11.2011 before learned District Judge Solan vide civil appeal no. 42-NL/13 of 2011. He dismissed the same on 23.6.2012. Hence, the present petition. 3. Mr. K.D. Sood, learned Senior Advocate, has vehemently argued that executing Court has not framed issues before dismissing the objections preferred under Order 21 Rules 97 and 98 read with section 151 of the Code of Civil Procedure. He then contended that the decree was vague and lacked material particulars. Description of the property has not been given. He has also contended that petitioner has redeemed the suit land from Ram Swaroop on 21.9.1967 and his clients have become mortgagee of Ram Swaroop. He has also contended that on 17.1.1964, Ram Swaroop took a sum of Rs.542/- as loan from one Sunder. He executed a pronote. A suit was filed by Sunder for decree of Rs.735.25 paise. Suit was decreed on 15.11.1967. In execution proceedings, petitioner with the consent and knowledge of Ram Swaroop paid a sum of Rs.935/-, i.e. decreetal amount with upto date interest. 4. Mr. He executed a pronote. A suit was filed by Sunder for decree of Rs.735.25 paise. Suit was decreed on 15.11.1967. In execution proceedings, petitioner with the consent and knowledge of Ram Swaroop paid a sum of Rs.935/-, i.e. decreetal amount with upto date interest. 4. Mr. Arvind Sharma has supported the judgment dated 23.6.2012 and order dated 17.11.2011. 5. I have heard the learned counsel for the parties and have gone through the pleadings and judgment dated 23.6.2012 and order dated 17.11.2011. 6. Respondent has filed a Civil Suit No. 16/1 of 95/91 for declaration with consequential relief of permanent injunction or in the alternative for possession claiming herself to be heir of Ram Swaroop. Trial court has framed the following issues: 1. “Whether late Sh. Saroop was the owner in possession of the suit property, as alleged? OPP. 2. Whether the plaintiff is the only daughter of deceased Saroop, as alleged? OPP. 3. If issue No.1 and 2 are proved in affirmative, whether the plaintiff has become owner in possession of the suit land, as alleged? OPP. 3. (a) Whether in the alternative the plaintiff is entitled for the decree of possession? OPP. 4. Whether the plaintiff has no locus-standi to file the present suit? OPD. 5. Whether the deceased Saroop executed a legal and valid will dated 4.8.1973 in sound state of mind, as alleged? OPD. 6. Whether the suit land is coparcenary property of the defendant and deceased Saroop. If so, its effect? OPD. 7. Whether the defendant has become the owner of portion of the suit land as the same has not been redeemed by late Shri Saroop within stipulated period, as alleged? OPD. 8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction. If so, what is the correct valuation? OPD. 9. Relief.” 7. Learned trial Court has decided issue No.1 and 2 in the affirmative, issues No.3 and 3-A were decided in negative. Issues No.4 and 6 to 8 were held against the petitioners, but issue No.5 was decided in favour of the petitioners. Suit was dismissed in view of the execution of “will” dated 4.8.1973 by Sh. Ram Swaroop in favour of petitioners. The suit was dismissed by the trial court on 14.8.1997. However, learned District Judge has allowed the appeal preferred against the judgment and decree dated 14.8.1997 on 19.8.1998. Suit was dismissed in view of the execution of “will” dated 4.8.1973 by Sh. Ram Swaroop in favour of petitioners. The suit was dismissed by the trial court on 14.8.1997. However, learned District Judge has allowed the appeal preferred against the judgment and decree dated 14.8.1997 on 19.8.1998. The point, which had been framed by the first appellate court for determination, reads as under: “Whether the findings of the trial court concluding validity of “will” dated 4.8.1973 by Shri Saroop in favour of defendants are against law, facts and liable to be reserved after accepting the appeal? 8. Learned District Judge has held that respondent was natural heir being daughter of Ram Swaroop and succeeded to his property. Ram Swaroop has not proved to have executed valid “will” in favour of petitioners and mutation of inheritance dated 24.8.1991 sanctioned in their favour on the basis of “will” was declared illegal, null and void. Suit of the respondent was decreed declaring that she has succeeded to Sh. Ram Swaroop qua the suit property as owner and on the basis of title was entitled to be put in possession of the suit property. Judgment of the trial court was set aside. She was held entitled to be put in possession of the same. Judgment dated 19.8.1998 was upheld by this Court in RSA No. 394/1998. 9. There is no merit in the contention of Mr. K.D. Sood, learned Senior Advocate that the trial court should have framed the issues and permitted the parties to lead evidence. Rights of the parties have already been adjudicated upon in the main suit. Parties cannot be permitted to reopen the entire case during the execution proceedings. Learned trial court had already framed issues with regard to redemption of mortgage. This issue was decided against the petitioners. Petitioners have not preferred any appeal against the findings on issues No.3 and 7. It is the respondent, who has filed an appeal and the only issue raked up before the learned District Judge was : whether the findings of the trial court concluding validity of “will” dated 4.8.1973 by Sh. Ram Swaroop in favour of defendants are against law, facts and liable to be reversed after accepting the appeal? District Judge has held that “will” dated 4.8.1973 was not validly executed. The suit has been contested for 17 years and now parties cannot be permitted to reopen the same. Ram Swaroop in favour of defendants are against law, facts and liable to be reversed after accepting the appeal? District Judge has held that “will” dated 4.8.1973 was not validly executed. The suit has been contested for 17 years and now parties cannot be permitted to reopen the same. 10. Their Lordships of the Hon'ble Supreme Court in Silverline Forum Pvt. Ltd. vs. Rajiv Trust and another, AIR 1998 SC 1754 have held as under: “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. 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 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. When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution court to adjudicate upon it. But while making adjudication, the court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint. The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resistor raised it. The questions which executing court is obliged to determine under rule 101, must possess two adjuncts. In other words, the court is not obliged to determine a question merely because the resistor raised it. The questions which executing court is obliged to determine under rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. similarly, a third party, who questions the validity of a transfer made by a decree-holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder. in the adjudication process envisaged in order 21 Rule 97(2) of the Code, execution court can decide whether the question raised by a resistor or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section. 12-13. It is clear that executing court can decide whether the resistor or obstructor is a person bound by the decree and he refused to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary.” 11. Now, as far as the plea of redemption of mortgage is concerned, as noticed above, the same was taken up before the trial court in the civil suit. Trial court has framed issue No.7 to this effect and has recorded the findings against the petitioners. It was held that petitioners have not become owners by efflux of time of the suit property. Both the courts below have rightly come to the conclusion that the same plea cannot be permitted to be taken again and again to delay the delivery of possession of the suit property. 12. It was held that petitioners have not become owners by efflux of time of the suit property. Both the courts below have rightly come to the conclusion that the same plea cannot be permitted to be taken again and again to delay the delivery of possession of the suit property. 12. According to the petitioners, on 17.1.1964, Ram Swaroop took loan of Rs.542/-. Civil Suit was filed against Ram Swaroop. It was decreed and in execution proceedings, petitioners paid the decreetal amount alongwith upto date interest. This plea was never taken in the written statement filed before the trial court. This plea was taken for the first time during the pendency of the execution proceedings. The amount is stated to have been paid on 24.8.1991. Present suit was filed on 10.5.1995. It was open to the petitioners to take up this plea in the written statement. 13. Their Lordships of the Hon'ble Supreme Court in Rafique Bibi (d) by LRs. Vs. Sayed Waliuddin (D) by LRs and others, AIR 2003 3789 that the plea which was not taken before passing decree, cannot be allowed to be raised during execution proceedings. Their Lordships have held as under: “10. It is not the plea of the judgment debtors-appellants that the Court which passed the decree did not have the jurisdiction to do so. It is also not their case that a ground for eviction of the tenants on the ground of default in payment of arrears of rent was not available to the landlords- respondents within the meaning of the Delhi and Ajmer Act or the successor Rajasthan Act. The only submission made is that before passing the decree the Court should have afforded the tenant an opportunity of depositing the rent in arrears, which was not done. Firstly, we find merit in the submission of the learned counsel for the respondents that it was for the tenants to have invited the attention of the Court by making an application in that regard so as to avail an opportunity of wiping out the effect of their default which gave rise to cause of action to the respondents, by depositing the rent during the pendency of the suit. That having not been done, the tenants appellants cannot be heard to urge any infirmity in the decree. That having not been done, the tenants appellants cannot be heard to urge any infirmity in the decree. Secondly, accepting it at its face value, in the eyes of law, the challenge seeks to expose a procedural irregularity which may, at best, result in the decree being termed as an 'illegal decree', but that in itself would not amount to branding the decree as 'without jurisdiction' or 'a nullity'. The plea which is sought to be urged in the execution proceedings was available to be raised by the tenants before the High Court in an appeal against the decree. Such a plea was not taken before the passing of the decree and cannot now be allowed to be urged during the execution proceedings. It is unfortunate that a decree of eviction passed in a suit commenced in the year 1956 and culminating into a final decree in the year 1986 is still starving for its execution.” 14. Now, the Court will advert to the last submission made by Mr. K.D. Sood, learned Senior Advocate, that the decree is vague and lacks material particular. The suit has been filed by the respondent for declaration with consequential relief of permanent injunction or in the alternative seeking possession of the suit land. Learned District Judge has set aside the judgment and decree dated 14.8.1997 passed by the trial court and suit of the respondent was decreed declaring that she being daughter of Sh. Ram Swaroop has succeeded to his property and entitled to be put in possession of the suit property. The decree is specific and the respondent has been ordered to be put in possession of the suit property. Executing Court has rightly adjudicated upon the objections preferred by the petitioners to the execution petition. No issues were required to be framed separately as the respective parties knew their case. The decree was specific and was capable of being executed. There is neither any perversity nor any illegality in the orders passed by the courts below. 15. Accordingly, in view of the analysis and discussion made hereinabove, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs. 16. Records be sent back to the trial court forthwith. 15. Accordingly, in view of the analysis and discussion made hereinabove, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs. 16. Records be sent back to the trial court forthwith. In order to obviate delay, parties through their counsel, are directed to appear before the trial court on 22.8.2014.