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2018 DIGILAW 248 (RAJ)

Banwari Lal S/o Shri Udmi Ram v. Chhabil Das S/o Shri Sajan Ram

2018-01-18

ARUN BHANSALI

body2018
ORDER : Mr. Arun Bhansali, J. This revision petition is directed against order dated 18.10.2016 passed by Additional District Judge No.1, Nohar, District Hanumangarh, whereby, the application filed by the petitioners under Section 47 CPC has been rejected. 2. An agreement to sale was executed by Dhanna Ram in favour of Chhabil Das on 01.03.1978; Chhabil Das executed another agreement to sale in favour of Mani Ram on 20.06.1978; a Sanad of the land in question was issued in favour of five grand-sons of Dhanna Ram on 21.05.1991. 3. A civil suit was filed by Chhabil Das and Mani Ram impleading the widow, son and daughter of Dhanna Ram as defendants seeking specific performance of agreement dated 01.03.1978; a written statement was filed by son of Dhanna Ram, inter alia, indicating issuance of Sanad in favour of his five sons; petitioners Banwari Lal and Paras Raj purchased some part of the land from grandsons of Dhanna Ram by registered sale deed on 04.03.1992 and petitioners Raj Kumar and Hansraj purchased some part of the land on 07.03.1992 by registered sale deed; the suit filed by Chhabil Das and Mani Ram seeking specific performance of agreement dated 01.03.1978 was partly decreed by judgment and decree dated 05.01.1996; it is claimed that a revenue suit was filed by sons and daughters of Mani Ram, from which, the petitioners came to know about the agreement to sale, suit and the decree dated 05.01.1996. 4. The petitioners and respondent No.23 Bhagwana Ram filed suit seeking cancellation of judgment and decree dated 05.01.1996, which suit came to be rejected by the trial court; Execution Application No. 05/2001 was filed for execution of decree dated 05.01.1996 impleading the petitioners as party. 5. The petitioners raised objections under Section 47 CPC, questioning the executability of the decree dated 05.01.1996. It was, inter alia, submitted in the objections that balance consideration of Rs. 20,000/- as required by the decree was not deposited within the stipulated time and the same was deposited on 26.02.1998, which time was not extended and, as such, the decree cannot be executed in terms of Section 28 of the Specific Relief Act, 1963 ('the Act of 1963'). 20,000/- as required by the decree was not deposited within the stipulated time and the same was deposited on 26.02.1998, which time was not extended and, as such, the decree cannot be executed in terms of Section 28 of the Specific Relief Act, 1963 ('the Act of 1963'). The objectors were not impleaded as defendants to the suit, no decree has been passed against them; the provisions of Section 52 of the Transfer of Property Act, 1882 ('T.P. Act') are not applicable; as under Section 19(b) of the Specific Relief Act, 1963 ('the Act of 1963') defence as bona fide purchaser is available to the petitioners, the execution petition be dismissed. 6. A response was filed by the decree-holders, inter alia, indicating that application filed by the petitioners under Section 28 of the Act of 1963 had already been rejected, as the transfer has taken place during pendency of the suit, they were bound by the decree and that objector No. 10/respondent No. 23 has transferred the land in question to the decree holders, therefore, the objections be rejected. 7. The trial court, by its impugned order came to the conclusion that the petitioners, being pendente lite purchasers, were not necessary parties and have no right to obstruct in the execution of the decree; there was no evidence that the decree in question was collusive; the provisions of Section 52 of the T.P. Act were applicable; objection pertaining to Section 28 of the Act of 1963 were not pressed. It was also held that the execution application was not barred by limitation and, consequently, the objections were rejected. 8. It is submitted by learned counsel for the petitioners that the trial court committed error in rejecting the objections filed by the petitioners. It was submitted that merely because land in question was transferred to the petitioners during pendency of the suit, by itself cannot render the decree execuitable against the petitioners, inasmuch as, if the petitioners were impleaded as party to the suit, a right to defend transfer, made in their favour in terms of Section 19(b) of the Act of 1963 would have accrued, which aspect has been totally ignored by the trial court and, therefore, the impugned order deserves to be quashed and set aside. It was submitted that the provisions of Section 52 of the T.P. Act do not make a pendent lite sale as void and as the case of the petitioners is that the decree passed was collusive, on that count also, the provisions of Section 52 of the T.P. Act had no application and, therefore, the order impugned deserves to be quashed and set aside. 9. Learned counsel appearing for the respondents supported the order impugned. It was submitted that the suit filed by the petitioners seeking cancellation of decree has already been rejected by the trial court and appeal filed by the petitioner is pending consideration. Once the suit filed by the petitioners, raising all the issues, has been rejected, the prosecuting of the application under Section 47 of the Act is impermissible and, consequently, the trial court was justified in rejecting the application and, therefore, the order impugned does not call for any interference. 10. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 11. The entire objection of the petitioners is based on the plea that they were necessary parties to the suit, which led to passing of the judgment and decree dated 05.01.1996 and as they were not impleaded as party, the decree passed in their absence, cannot be executed against them. The plea raised by the petitioners is fundamentally baseless. It is an admitted fact that transfer of property took place after the suit was filed by the decree holders and in fact the transfer was made by persons, who were not even parties to the suit, in favour of the petitioners. 12. The law with regard to necessity of impleadment of parties, who are strangers to the agreement, which is sought to be specifically performed is well settled as laid down by Hon'ble Supreme Court in Kasturi v. Iyyamperumal & Ors. : (2005) 6 SCC 733 , wherein, it was laid down that a third party or a stranger to the contract cannot be added as a party to a suit so as to convert a suit of one character into a suit of different character. In view thereof, the plea raised by the petitioners in this regard essentially had no legal basis. 13. In view thereof, the plea raised by the petitioners in this regard essentially had no legal basis. 13. The plea with regard to applicability of provisions of Section 52 of the T.P. Act essentially has no application to the facts of the present case, inasmuch as, the transfer in petitioners' favour was not made by any party to the suit as admittedly the transferor's were grandsons of Dhanna Ram, who were not parties to the suit, as it is essential requirement for applicability of Section 52 of the T.P. Act that the transfer must take place by any party to the suit or proceeding. 14. As already noticed hereinbefore, the petitioners filed a suit seeking cancellation of decree and the said suit has already been rejected by the competent civil court and the appeal arising from the said decree is pending consideration before the competent court, wherein, rights of the petitioners would be determined and on that count also seeking determination of various pleas from the executing court in teeth of decree already passed by a competent civil court inter se parties also makes the sustainability of the present proceedings questionable. 15. In view of the above discussion, the order passed by the executing court rejecting the objections raised by the petitioners under Section 47 CPC cannot be faulted. 16. Consequently, there is no substance in the revision petition and the same is, therefore, dismissed.