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2018 DIGILAW 1803 (RAJ)

Dinesh Kumar Sharma v. Shankar Lal Sharma

2018-08-28

ALOK SHARMA

body2018
JUDGMENT Alok Sharma, J. - Under challenge is the order dated 20.08.2018 passed by the Executing Court whereby the objections filed by the petitioner-objector under Order 21, Rule 35 CPC have been dismissed. 2. The facts of the case are that the suit for specific performance filed by the respondent No.1-plaintiff-Shankar Lal Sharma (hereinafter 'plaintiff') against the respondent No.2-defendant-Satyanarayan Sharma (hereinafter 'defendant') was decreed on consent on 01.10.2015. The consent decree not having been adhered to, the decree holder filed an application for its execution. In the said application, the petitioner, the brother of the defendant-judgment debtor, filed an application under Order 21, Rule 97 CPC seeking to agitate his rights/ title in the suit property and obstruct execution of decree. The said application was dismissed on 20.01.2018 by the Executing Court holding that the petitioner-objector had no right or interest in the suit property. The first appeal thereagainst under section 96 CPC was also dismissed on 31.07.2018. A second appeal under section 100 CPC is stated to be pending, but admittedly no interim order has been passed to the petitioner objector's benefit. 3. Undeterred by the rejection of the application under Order 21, Rule 97 CPC upto the first appellate court, the petitioner-objector moved another one application under Order 21, Rule 35 CPC before the executing court on 06.08.2018, stating that the consent decree dated 01.10.2015 was passed in respect of property of which, no description was appropriately set out either in the suit or even in the execution application and that the decree dated 01.10.2015 was a collusive decree. The executing court has dismissed the said application under Order 21, Rule 35 CPC on 20.8.2018. 4. Hence this petition under Article 227 of the Constitution of India easily filed. 5. Mr.Manish K. Sharma, counsel for the petitioner-objector has reiterated the same objections, as the objector agitated did before the executing court against the execution of the decree dated 01.10.2015. He submitted that the property in the suit was not adequately described. A vaguely set up case in the suit could not have been decreed. And even if decreed, the decree is inexecutable. He submitted that the property in the suit was not adequately described. A vaguely set up case in the suit could not have been decreed. And even if decreed, the decree is inexecutable. It was submitted that the rights/title of the petitioner-objector to the suit property, under the consent decree dated 01.10.2015, are yet under consideration in the second appeal against the judgment dated 31.07.2018 passed in first appeal against the dismissal of the application/ objection under Order 21, Rule 97 CPC. It was submitted that the petitioner is in possession of suit property and the said possession needs to be protected till the determination of the petitioner's rights/title in the second appeal against the judgment dated 31.07.2018 passed by the first appellate court. The impugned order dated 20.8.2018 failed to so do in the Executing Court failing to exercise jurisdiction vested in it. 6. Per contra, Mr.Anurag Shukla, counsel for the plaintiff submitted that the application under Order 21, Rule 35 CPC was not at all maintainable at the petitioner-objector's instance in view of the fact that the rights/title claimed by him in the suit property under the decree dated 01.10.2015 had earlier been negated by the executing court dismissing his application under Order 21, Rule 97 CPC on 20.01.2018. He submitted that the mere pendency of the second appeal under section 100 CPC arising therefrom is of no consequence, more so when there is no interim order in favour of the petitioner-objector. Mr.Anurag Shukla further submitted that the application under Order 21, Rule 35 CPC to obstruct the execution of the decree by the petitioner-objector, who is the brother of the judgment debtor, was wholly malafide and an abuse of the process of the court, inasmuch as subsequent to the decree passed on consent on 01.10.2015, the petitioner-objector had also filed a partition suit qua the suit property and his temporary injunction application under Order 39 Rules 1 and 2 CPC thereagainst was dismissed by the trial court on 31.08.2017. That order was also affirmed in Civil Misc. Appeal No.5252/2017 by this court on 16.08.2018. That order was also affirmed in Civil Misc. Appeal No.5252/2017 by this court on 16.08.2018. Suppressing the factum of the failure to obtain any interim relief in the suit for partition, an application under Order 21, Rule 97 CPC for the same relief was filed, and undeterred by a well detailed and reasoned judgment by the executing court dismissing it, the matter has been carried to this court against the order dated 20.8.2018 passed in a vexatious and frivolous application under Order 21, Rule 35 CPC. The petition therefore be dismissed. 7. Heard. Considered. 8. Admittedly the petitioner-objector's application under Order 21, Rule 97 CPC seeking to obstruct/object to the execution of the consent decree dated 01.10.2015 has been dismissed on 20.01.2018 by the executing court and that order has also been affirmed in the civil misc. appeal by the first appellate court on 31.07.2018. Albeit the petitioner-objector states to have filed a second appeal thereagainst, no interim order obtains to his benefit. I am of the considered view that the petitioner's rights/title in the suit property under consent decree dated 01.10.2015 having been thus negated, he lost all locus to further object to the execution of the consent decree dated 01.10.2015 by resorting afresh to Order 21, Rule 35 CPC. If at all the petitioner-objector was entitled to any protection of his purported rights, in the suit property under the consent decree dated 01.10.2015, it was for him to persuade the court considering his second appeal under section 100 CPC in respect of dismissal of his application under Order 21, Rule 97 CPC to pass an interim order of protection. This the petitioner has failed to do. The petitioner-objector's interim application under Order 39, Rule 1 and 2 CPC in his partition suit qua the property in dispute, was also dismissed by the trial court on 31.08.2017, which dismissal has been affirmed on 16.08.2018 in his misc. appeal being dismissed by this Court. All these facts have been suppressed from the Executing Court and in this petition. Quite apparently the petitioner-objector is a stubborn litigant accessing court unethically to thwart due process of law and execution of a consent decree. 9. In the facts of the case, I am of the considered view that the petitioner-objector is undeserving of the exercise of discretion by this court in the exercise of its supervisory jurisdiction. 10. Quite apparently the petitioner-objector is a stubborn litigant accessing court unethically to thwart due process of law and execution of a consent decree. 9. In the facts of the case, I am of the considered view that the petitioner-objector is undeserving of the exercise of discretion by this court in the exercise of its supervisory jurisdiction. 10. There is no force in the petition. Dismissed.