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2017 DIGILAW 1114 (HP)

Ravinder Mehta v. Ajay Singh Chauhan

2017-09-21

SURESHWAR THAKUR

body2017
JUDGMENT Sureshwar Thakur, J. - An ex-parte decree, for specific performance of agreement of sale entered inter se the deceased plaintiff and the defendant, agreement of sale whereof is borne in Ex.PW1/A, was, pronounced on 14.08.2013. The ex-parte decree was not concerted to tbe set aside. The ex-parte decree in respect of specific performance of agreement of sale, agreement whereof is borne in Ex.PW1/A, was put to execution before this Court by the original decree holder, now substituted by his legal hiers. 2. The judgment debtor instituted objections thereto, objections whereof are borne in OMP No. 212 of 2016. However, the aforesaid OMP, stood, under orders recorded on 22.06.2016, hence dismissed in default. Subsequently, this Court on 30.11.2016, had proceeded to pronounce an order, whereby, the Registrar (Judicial) of this Court was directed to, in accordance with Order XXI, Rule 32 of the CPC, execute a registered deed of conveyance in respect of the suit property vis-a-vis the decree holder(s). In compliance therewith, the registered deed of conveyance hence stood executed, a copy whereof is on record also sale consideration of Rs. 10 lacs is deposited in the Registry of this Court. Subsequently, on 13.01.2017, this Court had ordered, of physical possession of the suit property, which remained undelivered to the decree holder(s) in contemporaneity with execution of a registered deed of conveyance, being ensured by the learned Civil Judge (Senior Division), Shimla, to be hence delivered vis-a-vis the decree holder(s), by his directing the bailiff concerned to make its delivery upon the decree holder(s). However, the bailiff concerned reported to this Court, of, physical possession of the suit property being not delivered by him, to the decree holder, given at the relevant time of his visiting the suit premises, his finding them locked. 3. Subsequently, this Court had under a pronouncement recorded on 24th May, 2017 upon OMPs No. 20 and 146 of 2017, ordered, for restoration of objections borne on OMP No. 212 of 2016 and had also recalled the orders recorded on 22.6.2016. This Court has heard the learned counsel appearing for the JDs, upon, the validity of the objections preferred by the principal JD as borne in OMP No. 212 of 2016 along therewith the espousals vis-a-vis the validity of objections preferred vis-a-vis the coercive executability of the ex-parte decree, by the mother of the principal JD, also have been considered. 4. This Court has heard the learned counsel appearing for the JDs, upon, the validity of the objections preferred by the principal JD as borne in OMP No. 212 of 2016 along therewith the espousals vis-a-vis the validity of objections preferred vis-a-vis the coercive executability of the ex-parte decree, by the mother of the principal JD, also have been considered. 4. The principal judgment debtor in his objections embodied in OMP No. 212 of 2016, has, therein espoused, of, the decree put to execution being amenable to interference, its being rendered ex-parte despite his evidently, not, being served in accordance with law. He has also espoused therein that for lack of identification of the suit property, the decree put to execution being unamenable to execution. However, the aforesaid objections, even if, they were ordered to be taken on record, are rendered nugatory, in the evident face of the decree for specific performance of agreement of sale, being, put to part execution, comprised in the Registrar (Judicial), in compliance with the orders recorded by this Court on 30.11.2016, executing the relevant registered deed of conveyance with the decree holders. Moreover with the relevant record(s), making loud be speakings in respect of the principal JD being properly served in the apposite civil suit, thereupon, with no evidence being adduced for belying the signatures of the principal JD, occurring on the reverse of the summonses, hence, garner an inference of the aforesaid espousal being rudderless besides uncreditworthy. 5. Be that as it may, the objections reared by Smt. Promila Chauhan, evidently the mother of the principal judgment debtor, objections whereof are cast under the provisions of Order XXI, Rules 97-101, of the CPC, enjoin rendition of a pronouncement thereon. The substratum of the objection(s) reared by the mother of the principal judgment debtor, is hinged upon the decree pronounced in Civil Suit No. 25 of 012 emanating from collusion inter the predecessor-in-interest of the decree holders vis-a-vis the principal judgment debtor herein. She canvasses therein, of, the principal judgment debtor holding no authority to execute any agreement to sell in respect of the suit property with the predecessor-in-interest of the decree holders, emphatically when the suit property was purchased by her from her savings. She canvasses therein, of, the principal judgment debtor holding no authority to execute any agreement to sell in respect of the suit property with the predecessor-in-interest of the decree holders, emphatically when the suit property was purchased by her from her savings. However, the aforesaid objections do not undermine the legality of the title of the principal judgment debtor vis-a-vis the suit property, given the validity(ies) of the registered deed of conveyance executed inter se the principal judgment debtor with the authorised official(s) of the H.P. Housing Board, remaining unassailed, on the trite crucial besides pivotal aspect of it not holding the authentic signature(s) of the principal JD or of the principal JD forging her signatures. Contrarily, the registered deed of conveyance executed inter se the principal judgment debtor vis-a-vis the competent officer of the Housing Board, makes, a display of it standing executed inter se them. The aforesaid emanation borne in the apposite deed of conveyance executed inter se Ajay Singh Chauhan, the principal judgment debtor vis-avis the competent official of the H.P. Housing Board, did impute, empowerment to the principal JD, to, thereafter proceed to execute an apposite agreement for sale in respect, of, property (ies) borne therein vis-a-vis the predecessor-in-interest of the decree holders. Tritely, there is no articulation in the objections reared by the mother of the principal judgment debtor qua hers being unaware of execution of the relevant agreement of sale nor there is any communication therein that even at the time of the principal JD executing, a deed of conveyance, in respect of the suit premises, with the competent officer of the H.P. Housing Board, she thereat being also unaware in respect of its execution. Lack of hers rearing the aforesaid apposite echoings, does fillip an inference of the mother of the principal judgment debtor, merely, for barring a complete efficacious execution of the ex-parte decree, hers conniving besides colluding with the principal judgment debtor, yet her belated attempts are to be halted, significantly when any vindication(s) thereof would interfere with valid process(es) of law. 6. 6. Be that as it may, the objections in respect of hers vis-a-vis the suit property, purportedly liquidating, the sale consideration vis-a-vis the initial owner of the suit property or vis-a-vis her son, for, his further transmitting it to the original title holder, contrarily bespeaks her knowledge in respect of execution of deed of conveyance inter se her son vis-a-vis the competent official of the H.P. Housing Board, wherefrom, an aggravated conclusion is fomented, of, hers manipulating besides conniving with her son for, pretextuary concerting to baulk the decree holders besides to halt this Court, from, efficaciously completing all the legal process(es). Moreover, the incompetence or lack of empowerment of her son, the principal JD, to, execute the deed of conveyance with the prior owner, of, the suit property is anchored upon a plea, palpably unveiling of hers, being a benamidar, plea whereof is unespousable by her, for hers thereupon assaying to invalidate the ex-parte decree nor is a plea which foists in her any indefeasible vested title vis-a-vis the suit property,nor thereupon she can make a concert for barring this Court, from, completing all the legal process(es), for meteing the fullest satisfaction to the decree put to execution. 7. Even otherwise, the application instituted by the mother of the principal judgment debtor, is cast under the provisions of Order 21, Rules 97 to 101 of the CPC. She within the ambit of Rule 97 of Order 21 of the CPC, claims validation for her contemplated concert(s), of, resisting or obstructing the delivery of physical possession vis-a-vis the decree holders, by the bailiff concerned, under validly issued warrants of possession, orders whereof are evidently preceded by a validly executed instrument of sale, whereby, part satisfaction of the ex-parte decree of specific performance stands begotten. Sub rule (2) of Rule 97 of Order 21 enjoins this Court to adjudicate upon the validity(ies) of the contemplated obstruction(s) nursed by the mother of the principal JD, for thwarting delivery(ies) of valid possession(s) of the suit property vis-a-vis the decree holders. All the provisions occurring in succession to Rule 97, especially therefrom upto Rule 101 of Order 21 enjoin apposite cumulative conjoint reading. Provisions of Rules 97 to 101 or Order 21 read as under:- 97. All the provisions occurring in succession to Rule 97, especially therefrom upto Rule 101 of Order 21 enjoin apposite cumulative conjoint reading. Provisions of Rules 97 to 101 or Order 21 read as under:- 97. Resistance or obstruction to possession of immovable property.- (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed ''by any person'' in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. (2) Where any application is made under sub-rule (1), the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. 98. Orders after adjudication.- (1) Upon the determination of the questions referred to in rule 101, the court shall, in accordance with such determination and subject to the provisions of sub-rule (2),- (a) make an Order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or (b) pass such other Order as, in the circumstances of the case, ft may deem fit. (2) Where, upon such determination, the court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the court may also, at the instance of the applicant, Order the judgment debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days. 99. 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. 100. (2) Where any such application is made, the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. 100. Order to be passed upon application complaining of dispossession.- Upon the determination of the questions referred to in rule 101, the court shall, in accordance with such determination,- (a) make an Order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or (b) pass such other Order as, iii the circumstances of the case, it may deem fit. 101. Question to be determined.- 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 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. The trite satiatory cannon embodied in Rule 99 of Order 21 of the CPC, is comprised in one Promila Devi, the mother of the principal judgment debtor, within its ambit, significantly with hers provenly being the mother of the principal JD, being enjoined to establish, of, her dispossession in futuro from the suit property, upon, validly issued warrants of possession being executed, suffering from, an inherent legal defect, defect whereof arising from hers holding a paramount title or a title superior to the one her son, the principal JD, holds vis-a-vis the suit property. However, for the reasons aforesaid, when she evidently holds no title paramount vis-a-vis her son, the principal JD besides with this Court, concluding, of hers conniving with her son, for baulking all valid process (es), whereupon, complete execution of a valid executable decree, would stand begotten, preeminently also when she is not dispossessed from the suit property nor when she is dispossessed, therefrom, she yet thereat would hold no valid claim of possession thereof, being restored to her, by hers thereat casting an application under the provisions of Order 21, Rule 97 to 101 of the CPC, thereupon, at this stage, she cannot, when she has not suffered any invalid dispossession from the suit property, hence, prematurely strive to obtain any succor from mandate(s) thereof. Conspicuously, even the aforesaid endeavour of one Promila Chahan, is also premature besides infected with malafide(s), given this Court rejecting her objection(s), of, hers upon the suit property holding a superior title vis-a-vis her son. Concomitantly, her conniving conjured endeavour(s), for baulking the complete execution of a valid ex-parte decree, for specific performance, cannot be validated, emphatically with nowat the decree begetting part satisfaction, comprised in the deed of conveyance standing executed by the Registrar (Judicial) of this Court with the decree holders. In aftermath, her resistance is invalid and bereft of any force. 8. For reasons recorded hereinabove, there is no merit in the objections preferred hereat by the principal JD and by his mother, hence, both the OMPs are devoid of any merit(s) and are dismissed accordingly. 9. The learned Civil Judge(Senior Division), Shimla is directed to ensure a complete and efficacious execution of the apposite decree, by, his issuing warrants of possession vis-avis the suit property, upon the bailiff concerned, whereafter the latter shall ensure delivery of possession of the suit property by the judgment debtor(s) vis-a-vis the decree holder and in the event of his visiting the suit property, his discovering of it being locked, thereupon, the learned Civil Judge (Senior Division), Shimla, for, avoiding his being remotioned for rendering further appropriate orders, shall, in the initial pronouncement, make, an order, of, hence with the help of the police, the bailiff breaking open the locks of the suit property. The aforesaid directions be forthwith besides with utmost dispatch carried into effect by dealing hand(s) concerned. List after four weeks.