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2014 DIGILAW 964 (PNJ)

Bhagwan Dass v. Surjit Singh

2014-06-30

RAKESH KUMAR JAIN

body2014
JUDGMENT Mr. Rakesh Kumar Jain, J.: - This order shall dispose of two revision petitions bearing CR Nos.1836 and 1844 of 2013 as both are inter-connected. 2. In CR No.1836 of 2013, the petitioner has challenged order dated 12.03.2013 (Annexure P-6) by which application filed by the petitioner under Section 152 of the Code of Civil Procedure, 1908 (for short “CPC”) has been dismissed, whereas CR No.1844 of 2013 is directed against the order dated 12.03.2013 (Annexure P-7) dismissing the objections filed by the petitioner under Section 47 CPC. 3. Brief facts of the case are that respondent no.1 Surjit Singh (vendee) and respondent no.2 Bishan Paul (vendor) entered into an agreement dated 06.02.1985 to sell remaining half share in property no.BVII- 555, Nizam Road, Ludhiana. Surjit Singh filed suit for specific performance in respect of the agreement dated 06.02.1985 alleging that Bishan Paul had received Rs.1,000/- from him as advance and agreed to execute and register the sale deed on 31.12.1985 on receipt of remaining sale consideration of Rs.64,000/-. The said suit bearing No.45 was filed on 06.02.1988 in which Surjit Singh had further alleged that he had already purchased half share of the property from Bishan Paul vide sale deed dated 07.02.1983 and the remaining half share was agreed to be sold on 06.02.1985. In the said suit, Surjit Singh had also impleaded Bhagwan Dass (petitioner herein) and Satya Parkash as defendants no.2 and 3 to whom Bishan Paul (vendor) had sold the suit property vide registered sale deed dated 05.03.1986, one shop situated on the ground floor of the suit property was sold to Bhagwan Dass and other shop on the ground floor to Satya Parkash (defendant no.3) on 02.05.1986 in which they were the sitting tenants. Bishan Paul had also sold the second portion of the suit property on 02.01.1989 to the petitioner Bhagwan Dass. 4. The suit was contested by Bishan Paul (defendant no.1) by filing separate written statement and the other defendants in which defendnat no.2 took a specific plea of bonafide purchaser for valuable consideration being unaware of the agreement prior to the sale deed dated 02.05.1986. It was also alleged that on 28.09.1988, Surjit Singh had executed sale deed in respect of half share of his property No.B-VII-555 which he had purchased vide aforesaid sale deed dated 07.03.1983 from Bishan Paul for a sale consideration of Rs.45,000/- in favour of Bhagwan Dass. It was also alleged that on 28.09.1988, Surjit Singh had executed sale deed in respect of half share of his property No.B-VII-555 which he had purchased vide aforesaid sale deed dated 07.03.1983 from Bishan Paul for a sale consideration of Rs.45,000/- in favour of Bhagwan Dass. Therefore, the suit filed by Surjit Singh on the basis of the agreement to sell dated 06.02.1985 had become redundant. 5. On the pleadings of the parties, various issues were framed and they were called upon to lead their evidence. On 25.02.1992, counsel for the plaintiff made the following statement:- “Statement of Sh. M.C.Sehgal, Advocate, counsel for plaintiff. Stated that I do not claim any relief against defendants no.2 and 3 and names of these defendants be deleted from the suit. RO&AC Sd/- 25/2/92 Sd/- M.C.Sehgal Adv. S.J.I.C.” 6. On the aforesaid statement, following order was passed by the learned Trial Court:- “Present:- Counsel for the parties. In view of the statement made by Shri M.C.Sehgal, Advocate, counsel for plaintiff, suit is withdrawn against the defendants no.2 & 3. Therefore, the name of the defendants no.2 & 3 is deleted from the head note of the plaint. Now to come upon 12/3/92 for evidence of the defendant no.1. Sd/- S.J.I.C./25.2.92. 7. However, the Trial Court, while deciding the suit, passed the following order in respect of issue no.8 (Relief), which reads thus:- “Issue No.8 (Relief) In view of my decision in the foregoing issues, I pass a decree for possession by way of specific performance of agreement to sell dated 06.02.1985 of half share of property No.B.VII-555, Nizam Road, Ludhiana, as fully detailed in the head-note of the plaint in favour of the plaintiff against the defendants with the conditions that the defendant to deposit the remaining Rs.64,000/- within a period of one month from the date of judgment, failing which the suit of the plaintiff shall stand dismissed. Decree-sheet be prepared. The file be consigned to the record room. Announced:14.05.1992. Sd/- Sub Judge 1st Class Ludhiana.” 8. Although learned counsel for the parties has not placed on record the decree drawn in terms of the judgment dated 14.05.1992, yet the whole dispute between the parties is that the Trial Court had passed the decree against the “defendants” instead of “defendant no.1”. The file be consigned to the record room. Announced:14.05.1992. Sd/- Sub Judge 1st Class Ludhiana.” 8. Although learned counsel for the parties has not placed on record the decree drawn in terms of the judgment dated 14.05.1992, yet the whole dispute between the parties is that the Trial Court had passed the decree against the “defendants” instead of “defendant no.1”. When Surjit Singh/decree-holder filed the Execution Application No.157/14.06.1995, not only against the judgment debtor Bishan Paul but also Bhagwan Dass (petitioner herein) and Satya Parkash (defendant no.3) in which prayer was made to direct the judgment debtors to execute the sale deed in favour of the decree-holder and also requested for issuance of warrant of possession, Bhagwan Dass immediately filed application dated 06.04.1996 under Section 152 CPC and objection dated 06.04.1996 under Section 47 CPC in which it was alleged that there is an error in the decree, whereby the suit has been decreed against the “defendants”, therefore, it should have been corrected to have been decreed against defendant no.1 alone as the suit filed by the plaintiff against defendants no.2 and 3 had already been dismissed on 25.02.1992. 9. The said application filed under Section 152 CPC was contested and has been dismissed by the learned Executing Court on the ground that Section 152 CPC cannot be applied as the correction sought by the judgment debtor is not a typographical mistake and the names of defendants no.2 and 3 cannot be struck off and cannot be deleted at this stage. If the applicant-judgment debtor is aggrieved, he is supposed to approach the Appellate Court by way of filing appeal against the judgment, but the application is not maintainable. The objection filed under Section 47 CPC was also dismissed by the Executing Court on the same premise that the Executing Court cannot go behind the decree which could be corrected only by way of an appeal. 10. Learned counsel for the petitioner has submitted that the petitioner and defendant no.3 had claimed themselves to be bona fide purchasers without notice of the agreement between the vendor and vendee and sought protection under Section 41 of the Transfer of Property Act, 1882. 10. Learned counsel for the petitioner has submitted that the petitioner and defendant no.3 had claimed themselves to be bona fide purchasers without notice of the agreement between the vendor and vendee and sought protection under Section 41 of the Transfer of Property Act, 1882. The petitioner and defendant no.3 were very much parties and contested the suit, but on 25.02.1995, a specific statement was made by counsel for the plaintiff that the names of the defendants no.2 and 3 be deleted from the array of the parties and on 25.02.1992 itself, a specific order was passed by the Trial Court withdrawing the suit against defendants no.2 and 3. It is submitted that once defendants no.2 and 3 were no more a party after 25.02.1992, the Trial Court could not have passed any decree against defendants no.2 and 3 as well on 14.05.1992 by using the word “defendants” instead of “defendant no.1”. It is further submitted that Section 152 CPC is founded on the maxim actus curiae nemi-num gravabil, i.e. the act of the court shall prejudice no man. It is further submitted that Section 47 of the CPC also provides that instead of filing a separate suit, all questions arising between the parties to the suit in which the decree is passed and relating to its execution shall be determined by the Executing Court. Since the question before the Executing Court was as to whether the decree can be executed against the petitioner who was no more a party to the suit after 25.02.1992 and whether such a decree could have been passed against the person after deletion of his name or the suit having been dismissed against him, should have been decided by the Executing Court. 11. On the other hand, learned counsel for the respondents has submitted that for the purpose of drawing decree in a suit for specific performance, the subsequent purchaser can be joined in the conveyance so as to pass the title residing in him. He has also submitted that the subsequent sale deed by the vendor in favour of the petitioner herein shall be deemed to be a sale lis pendense as the execution of the decree would relate back to the date on which the agreement was entered into between the parties. 12. I have heard learned counsel for the parties and considered their respective contentions. 13. 12. I have heard learned counsel for the parties and considered their respective contentions. 13. The basic issue involved in this case is that whether the order of dismissing the application under Section 152 CPC and the objection under Section 47 CPC is illegal and without jurisdiction. There is no dispute that the suit was initially filed against the petitioner and one Satya Parkash, who are the purchasers of the property in dispute before the suit could have been filed because the suit is filed on 06.02.1988 and the sale deeds in favour of defendant no.2 Bhagwan Dass (petitioner herein) and Satya Parkash were effected on 05.03.1986 and 02.05.1986. They had contested the suit claiming themselves to be bona fide purchasers without notice of the agreement to sell dated 06.02.1985 between the vendor Bishan Paul and vendee Surjit Singh. Before the Court could have finally decided the suit, on his sweet will, the plaintiff Surjit Singh made a statement through his counsel before the Court that he does not want to claim any relief against defendants no.2 and 3 and requested that their names may be deleted from the suit, meaning thereby he had not contested with defendants no.2 and 3 who had taken up the plea of bona fide purchaser to protect their title over the suit property. Consequent upon the statement made by Shri M.C.Sehgal, Advocate, appearing on behalf of Surjit Singh, an order was passed by the Trial Court on 25.02.1992 specifically dismissing the suit against defendants no.2 and 3 and deleting their names from the array of the defendants. The case was then adjourned to 12.03.1992 for the evidence of defendant no.1 which means that after deletion of their names from the array of parties, there was no contest left at the hands of defendants no.2 and 3 in the suit filed by the plaintiff. Defendants no.2 and 3 were supremely confident that the property purchased by them from their vendor are now fully protected but to their utter surprise, the Trial Court, while deciding the suit on 14.05.1992, passed the decree against the “defendants” instead of “defendant no.1”. In such a situation, the only remedy left with the petitioner-defendant no.2 was to file an application under Section 152 CPC for correction of the decree. In such a situation, the only remedy left with the petitioner-defendant no.2 was to file an application under Section 152 CPC for correction of the decree. Section 152 of CPC is based upon two important principles: that the act of the Court shall prejudice no man and that the Court have a duty to see that their records are correct and they represent the correct state of affairs. Apparently, there is an error committed by the Trial Court while deciding the suit insofar as the issue no.8 (relief) is concerned, while passing the decree in favour of the plaintiff against the “defendants” instead of “defendant no.1” as on 25.02.1992, the suit filed by the plaintiff against defendants no.2 and 3 had already been dismissed as withdrawn. Once defendants no.2 and 3 were not even parties before the Court, no decree could have been passed against them as it is a salutary principle of law that a decree against a person who is not a party to the suit is a nullity and cannot be executed against him. The Trial Court has committed a patent error in dismissing the application filed under Section 152 CPC only on the ground that it could correct only typographical mistakes and since the judgment and decree has been passed by the Trial Court against defendants no.2 and 3 as well, therefore, it could have been only corrected by way of an appeal. It has further committed error in the exercise of its jurisdiction in dismissing the objection filed under Section 47 CPC again on the same premise that once a decree has been passed, the judgment debtor should have filed an appeal for setting aside the said decree against him. In this regard, it is pertinent to mention that Section 47(1) clearly provides that all questions arising between the parties to the suit in which the decree was passed and relating to the execution, shall be determined by the Court executing the decree. All these questions as to whether the decree passed in the suit would relate back to the date of agreement could have been decided by the Executing Court had the objection filed by the petitioner been entertained. 14. All these questions as to whether the decree passed in the suit would relate back to the date of agreement could have been decided by the Executing Court had the objection filed by the petitioner been entertained. 14. Thus, in view of the aforesaid discussion, both the revision petitions are found to be meritorious and are thus allowed and the impugned orders passed by the Trial Court dismissing the application filed under Section 152 CPC and objection filed under Section 47 CPC are hereby set aside. ---------0.B.S.0------------ —————————