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2015 DIGILAW 2034 (RAJ)

Tatheer Fatima v. Neelu Dandhiya

2015-12-07

BELA M.TRIVEDI

body2015
JUDGMENT : Bela M. Trivedi, J. The present Execution First appeal filed by the appellant objector arises out of the order dated 06.11.2015 passed by the Additional District Judge No.11, Jaipur Metropolitan, Jaipur (hereinafter referred to as "the executing court") in the objection petition No.19/2015 filed by the appellant under Order 21, Rule 97 of CPC. 2. This is one of the classic cases of misuse of process of law, whereby the present appellant-objector wife of the respondent No.2-judgment debtor, had filed the objection petition before the executing court obstructing the respondent No.1-decree holder from taking over the possession of the suit premises, after the respondent No.2, having failed in all the proceedings right up to the Supreme Court. 3. The short facts of the present case are that the present appellant-objector happens to be the wife of the respondent No.2 Shri Abdul Sami, the judgment-debtor, against whom the respondent No.1 Smt. Neelu Dandhiya, the decree holder, had filed the suit seeking specific performance of the agreement dated 14.12.2006 executed in her favour by the respondent No.2 along with his four brothers in respect of the property being house No.C-107, Shivaji Marg, Tilak Nagar, Jaipur. The said suit having been decreed by the trial court on 05.09.2012, the respondent No.2-judgment debtor had preferred the first appeal before the High Court, which was dismissed on 08.12.2014. The respondent No.2 having filed the SLP before the Supreme Court, the same was dismissed on 07.05.2015. It appears that thereafter the respondent No.1- decree holder had filed the execution petition for execution of the said decree for specific performance of the agreement in question passed in her favour, and the sale deed was also executed in her favour through Court on 29.04.2015. Thereafter the appellant-objector filed the objection petition before the executing court on 15.05.2015 stating interalia that the part of the property in question was orally gifted to her by her father-in-law late Shri Abdul Samad on 05.10.1981, and the same was reduced into writing in presence of two witnesses on 03.11.1981, and that she was in possession of the said part of the property since then. The appellant-objector had also filed an application requesting the executing court to frame points of determination and to grant her permission to lead the evidence. The appellant-objector had also filed an application requesting the executing court to frame points of determination and to grant her permission to lead the evidence. The executing court vide the impugned order dated 06.11.2015 dismissed the said application as well as the objection petition of the appellant, against which the present appeal has been filed. 4. It is sought to be submitted by the learned counsel Mr. R.P. Garg for the appellant that the executing court has wrongly dismissed the application of the appellant seeking permission to lead the evidence in the objection petition, inasmuch as all the questions including the question of title have to be decided by the court in the execution proceedings only and not by way of separate suit, in view of the decision of the Apex Court in case of N.S.S. Narayana Sharma and others v. M/s. Goldstone Exports (P) Ltd. and others, AIR 2002 Supreme Court 251. He also submitted that the observation, made by the executing court that the 'hibanama' made by the father-in-law of the appellant in her favour was not registered and therefore was not admissible in evidence, was contrary to the decision of the Apex Court in case of Hafeeza Bibi & Ors. v. Shaikh Farid (dead) by LRs. & Ors., AIR 2011 Supreme Court 1695. Taking the Court to the other proceedings, filed by the son and husband of the appellant, he submitted that the appellant was not aware about the execution of the agreement in question by her husband in favour of the respondent No.1, and that she came to know about the same for the first time when her husband threatened her to disposes her on 06.05.2015. According to him, the executing court should have given the opportunity of leading the evidence to the appellant before deciding the objection petition. However, the learned counsel Mr. Suresh Sahni for the respondent No.1 who appears on caveat, submitted that the appellant has thoroughly misused the process of law at the instance of the respondent No.2, who happens to be her husband. Relying upon the various proceedings produced along with the reply to the stay application, he submitted that the conduct of the appellant all through out was very dubious and the executing court having considered all the issues involved, has rightly dismissed the objection petition. 5. Relying upon the various proceedings produced along with the reply to the stay application, he submitted that the conduct of the appellant all through out was very dubious and the executing court having considered all the issues involved, has rightly dismissed the objection petition. 5. Having regard to the submissions made by the learned counsels for the parties and to the documents on record, and the impugned order passed by the executing court, it appears that the respondent No.1 along with his four brothers had executed an agreement to sell the property in question on 14.12.2006 in favour of the respondent No.1. Each brother having 1/5th share in the suit property, the other four brothers had already executed the sale deeds in respect of their respective shares in the suit property and handed over possession in respect of the said 4/5th portion of the said property to the respondent No.1 as back as in the year 2010. Since the respondent No.2 did not execute the sale deed in respect of his 1/5th share in the said property, the respondent No.1 had filed the suit for specific performance of the agreement in question. As stated here in above, the said suit having been decreed by the trial court, and the appeals filed by the respondent No.2 having been dismissed by the High Court as well as by the Supreme Court, the respondent No.1 had filed the execution proceedings, and the executing court had also got the sale deed executed in favour of the respondent No.1 on 29.04.2015. At this juncture, the appellant-objector had filed the objection petition on 15.05.2015 claiming to be the owner of the said property alleging that the said part of the property was gifted to her by her father-in-law on 05.10.1981, and it was also reduced into writing by him on 03.11.1981 in presence of two witnesses. 6. It is pertinent to note that there was no document whatsoever produced by the appellant to show that the said property was gifted by her father-in-law in her favour. According to her the said 'hibanama' was with the Police in respect of one complaint lodged by the husband of the respondent No.1 against her. 6. It is pertinent to note that there was no document whatsoever produced by the appellant to show that the said property was gifted by her father-in-law in her favour. According to her the said 'hibanama' was with the Police in respect of one complaint lodged by the husband of the respondent No.1 against her. However, in the other proceedings filed by her son Abdul Wasi seeking partition of the property in question against his father and uncles, he had pleaded that the said property was gifted by her grand father i.e. Abdul Sami to his mother i.e the present appellant and the said 'hibanama' was with his mother. In the said suit, the said son i.e. Abdul Wasi of the appellant had neither produced the alleged writing or 'hibanama', nor had made his mother i.e. the present appellant as the party-defendant. The trial court, therefore, had dismissed the said suit under Order 7, Rule 11 of CPC on the ground that the plaint did not disclose the cause of action. The said son Dr. Abdul Wasi having challenged the said order before the High Court, by filing the first appeal the same was dismissed. The said son had also filed another suit seeking partition, which was also dismissed by the trial court under Order 7, Rule 11 against which, the appeal having been filed, the same was also dismissed by the High Court. In none of the proceedings, the appellant had bothered to be the party. There is nothing on record to suggest that the appellant did not have talking terms with her husband and son or that she was staying alone in the suit property, or that her husband and her son were staying separate from the appellant and therefore she was not aware about the litigation's filed by her husband and her son. Under the circumstances it is not believable that the appellant was not aware about the execution of the agreement in question in favour of the respondent No.1, or the decree passed by the trial court in favour of the respondent No.1 and against her husband the respondent No.2, in respect of the property in question. 7. Though, it is sought to be submitted by the learned counsel Mr. 7. Though, it is sought to be submitted by the learned counsel Mr. R.P. Garg for the appellant that the writing i.e. 'hibanama' was produced in the criminal case which was filed by the husband of the respondent No.1 against her, the said submission also cannot be accepted, in view of final report submitted by the Investigating Officer stating interalia that no such 'hibanama' was produced by the appellant. 8. It is true that in view of the decision of Apex Court, in case of Hafeeza Bibi (supra), in Mohammedan law, gift of immovable property is permissible, and the registration thereof is not necessary. The observation therefore made by the executing court that 'hibanama' required registration cannot be said to be correct one. However, in the instant case no such document of 'hibanama' was ever produced by the appellant in the execution proceedings or any other proceedings. It is only by way of misuse of process of law that such objection petition was filed by the appellant. There cannot be any disagreement with the ratio of decision of Supreme Court in case of N.S.S. Narayana Sharma and others v. M/s. Goldstone Exports (P) Ltd. and others (supra), that the executing court is competent to decide all the questions including the question of title in the execution proceedings itself and not by way of separate suit in view of provisions contained in Section 47 read with Order 21, Rule 101 of CPC. However, in the instant case, the executing court as well as this Court have found that the said objection petition was filed by the appellant only with the ulterior motive of misusing the process of law at the instance of the respondent No.2, who happens to be the husband of the appellant. 9. In that view of the matter, the Court does not find any substance in the present appeal, on the contrary the Court finds that the entire proceedings of the objection petition was filed by the appellant only to cause obstruction to the respondent No.1 in obtaining the possession of the suit property, abusing and misusing the process of law at the instance of the respondent No.2. Hence, the present appeal deserves to be dismissed with cost of Rs.25,000/- to be paid to the respondent No.1 within two weeks. Hence, the present appeal deserves to be dismissed with cost of Rs.25,000/- to be paid to the respondent No.1 within two weeks. If the appellant fails to pay the same, the respondent No.1 shall be at liberty to recover the same in accordance with law. The appeal is dismissed accordingly. By this order the stay application also stands dismissed. The executing court is directed to decide the execution proceedings as expeditiously as possible in view of the decision of the Apex Court in case of Satyawati v. Rajinder Singh and Another, (2013) 9 Supreme Court Cases 491. Appeal Dismissed With Cost Of Rs. 25,000/-