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2015 DIGILAW 249 (ALL)

Anuj Kumar v. Shanti Devi

2015-02-09

ASHWANI KUMAR MISHRA

body2015
JUDGMENT : Ashwani Kumar Mishra, J. The present writ petition is directed against the order dated 2.8.2014, rejecting the application of plaintiff, under Order 21, Rule 29 of the Code of Civil Procedure, 1908, as well as the order dated 15th January, 2015, rejecting the revision against it. 2. Facts in brief giving rise to the dispute are that Late Raja Ram, who was the recorded tenure holder executed an agreement to sell in respect of the suit property in favour of Smt. Shanti Devi, who instituted original suit No. 130 of 1976 for specific performance of such agreement to sell. The suit for specific performance was decreed on 16.2.1979. An appeal, under Section 96 CPC, being Civil Appeal No. 95 of 1981 was also rejected on 13.7.1982. A second appeal No.316 of 1982 was filed before this Court, which was ultimately rejected on 20th March, 1997. During pendency of the second appeal, Raja Ram executed another sale deed, in respect of the part of land covered by decree, in favour of father of petitioner Late Jai Singh. An execution case No. 6 of 1997 was thereafter filed by the decree holder. The petitioner's father Jai Singh in respect of the same property filed an original suit for injunction, being original suit No. 1001 of 1997, which is pending. Thereafter an application was moved in execution case No. 6 of 1997, under Order 21, Rule 29 CPC, on the ground that in respect of the same property, an original suit No.1001 of 1997 is pending, and therefore, the proceedings of execution is liable to be stayed. Initially the application was rejected by both the courts below on the ground that such an application cannot be moved by a third party. The orders in this regard were challenged by filing writ petition No. 1592 of 2000, which was allowed, and the courts below were directed to decide the application, under Order 21, Rule 29 CPC, afresh on merits, after taking into consideration the amendment made in the provision, on account of which the application at the instance of the petitioner was maintainable. Pursuant to the aforesaid orders passed by this Court on 27.9.2013, the courts below have considered the claim on merits, and have rejected the application giving rise to filing of the present writ petition. 3. Pursuant to the aforesaid orders passed by this Court on 27.9.2013, the courts below have considered the claim on merits, and have rejected the application giving rise to filing of the present writ petition. 3. Sri Sanjiv Singh, learned counsel for the petitioner, submits that the orders passed by the courts below are wholly illegal and perverse, inasmuch as a suit for injunction is pending in the same court, at the instance of the petitioner, in respect of the same subject matter, for which the execution is also pending in the same court, and therefore, the application, under Order 21, Rule 29 CPC, was liable to be allowed. Sri Singh further submits that as on date, the petitioner has a better title over the property, as a sale deed exists in his favour, and therefore, the proceedings of the execution case was liable to be stayed. Reliance has been placed upon the judgment of the Apex Court reported in AIR 1973 SC 528 (Shaukat Hussain @ Ali Akram and others v. Smt. Bhuneshwari Devi (dead) by L.Rs. And others), and upon the decision reported in AIR 1982 SC 818 (Babu Lal v. M/s. Hazari Lal Kishori Lal and others) to contend that the orders passed by the courts below are in teeth of the aforesaid law. 4. Sri B.P. Singh, Learned Senior Counsel, assisted by Sri Rajeev Trivedi, appearing for the respondents, submits that the provisions of Order 21, Rule 29 CPC does not mandate that in every matter, where an execution case is proceeding and a suit is also pending, it is obligatory upon the court to stay the proceedings of execution. It is submitted that suit for specific performance had already been decreed, which was affirmed with rejection of appeal, and the defendant to the suit had transferred the property during the pendency of the second appeal, and therefore, the provisions of Section 52 of the Transfer of Property Act would be attracted, and the purchaser would be bound by the decree for specific performance, as purchaser cannot have a better title than his predecessor in interest. It is submitted that the power under Order 21, Rule 29 CPC is to be exercised only in exceptional cases where the interest of justice so requires, and the fruits of decree is not liable to be stayed, except for good reasons. It is submitted that the power under Order 21, Rule 29 CPC is to be exercised only in exceptional cases where the interest of justice so requires, and the fruits of decree is not liable to be stayed, except for good reasons. Reliance has been placed upon the judgments of the Apex Court reported in (2012) 7 SCC 738 (A. Nawab John and others v. V.N. Subramaniyam), and reported in (2013) 5 SCC 397 (Thomson Press (India) Limited v. Nanak Builders and Investors Private Limited and others). 5. Having considered the respective submission advanced before this Court, and upon perusal of materials placed, it transpires that a suit for specific performance had been instituted in respect of the property in question, against the petitioner's vendor Raja Ram in 1976, which had been decreed on 16.2.1979, and the appeal also met the same fate on 13th July, 1982. It is at this juncture that a second appeal was filed before this Court, and during pendency of the appeal, the petitioner's father purchased the property on 15.4.1987 from Raja Ram. On the date of purchase of the property by petitioner's father, a decree for specific performance of contract had already been passed against Raja Ram, from whom the property was purchased by petitioner's father. Since the decree for specific performance had already been passed, and was operating against the petitioner's vendor, as such, the provisions of Section 52 of the Transfer of Property Act, were clearly attracted. It is settled that any transfer of property during the pendency of the proceedings, would be subservient to the rights of the parties to such suit, as is eventually determined. 6. In the facts of the present case, the suit had already been decreed, and the appeal was dismissed. The decree of specific performance had been passed, in teeth of which transfer in favour of the petitioner's father was made. Subsequently, the second appeal was also rejected, and therefore, the decree of specific performance as against petitioner's vendor has attained finality. It is settled that any alienation of the property covered by decree of specific performance would not be to the prejudice of the decree holder, and such alienation would be subservient to the rights of the parties to the suit. It is settled that any alienation of the property covered by decree of specific performance would not be to the prejudice of the decree holder, and such alienation would be subservient to the rights of the parties to the suit. Since in the present case, the petitioner's vendor was already a party to the decree for specific performance, therefore, any transfer of the suit property in favour of the petitioner would remain subservient to the rights secured against the petitioner's vendor. The decree of specific performance has become final, and has been put to execution. At this stage, the stay of execution has been claimed on the ground that a suit for injunction is pending in the same court. It would be appropriate to observe that mere pendency of suit in the court, where execution is pending, cannot be a ground to claim stay of proceedings of execution as a matter of right. The decree passed in the suit for specific performance has become final against the petitioner's vendor, and therefore, its execution cannot be resisted by the petitioner, merely on the ground that a suit for injunction has been filed by him in view of the settled law that the right acquired by the petitioner's father remains subservient to the rights, which have accrued in favour of the decree holder. This Court further finds that injunction suit instituted by the petitioner is merely to protect his possession, but the rights of the decree holder to obtain the fruits of the decree of specific performance has not been challenged. In the absence of there being any challenge to the entitlement of the decree holder to execute the decree, it would not be open for the plaintiff to claim stay of execution merely on the ground of pendency of suit in the same court. 7. The power conferred upon the court to stay the proceedings under Order 21, Rule 29 CPC is in aid of doing justice to the parties, and has to be exercised only in exceptional cases. This Court finds that consideration of equity clearly weigh against the petitioner in the facts and circumstances of the present case. Law is otherwise settled that the execution of a decree is not liable to be stayed, except for justifiable and good ground. In the facts of the present case, the petitioner has no right to resist the decree of specific performance. Law is otherwise settled that the execution of a decree is not liable to be stayed, except for justifiable and good ground. In the facts of the present case, the petitioner has no right to resist the decree of specific performance. In such circumstances, if the courts below have rejected the application under Order 21, Rule 29 CPC, this Court finds that no perversity or illegality could be attributed to such orders so as to require any interference in the matter. 8. The judgment relied upon by learned counsel for the petitioner in the case of Babu Lal v. M/s. Hazari Lal Kishori Lal and others (supra) does not help the petitioner's case, inasmuch as the said decision of the Apex Court dealt with the provisions of Section 22 of the Specific Relief Act, and it was held that once a suit for specific performance has been decreed, the relief of possession can be granted, as such relief is inherent. Para 21 of the judgment, on which reliance has been placed, states that title to the property passes only with the execution of the sale deed. Such sale deed is to be executed pursuant to the decree of specific performance in execution. The petitioner, therefore, cannot seek stay of execution, inasmuch as the decree of specific performance has attained finality, and his title is subservient to the decree for specific performance, which is liable to be executed. Reliance upon Shaukat Hussain (supra) also is of no avail, inasmuch as the judgment of the Apex Court only deals with the contingencies, in which the provisions of Order 21, Rule 29 CPC gets attracted. However, it cannot be pressed that in every matter, where the ingredients of the provision are attracted, the court concerned is obliged to stay the execution proceedings, inasmuch as the exercise of such power would depend upon the facts and circumstances of each case, and as the considerations of equity and justice are against the petitioner, therefore, refusal by courts below to exercise jurisdiction under Order 21, Rule 29 CPC cannot be said to be illegal or perverse. 9. In view of the discussions made above, this Court finds no good ground to interfere with the orders passed by the courts below, and consequently, the writ petition fails, and is dismissed. Petition dismissed.