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2018 DIGILAW 26 (PNJ)

Renu Kundra v. Surjit Singh

2018-01-08

RAJ MOHAN SINGH

body2018
JUDGMENT Mr. Raj Mohan Singh, J.:- Petitioner has assailed the order dated 24.12.2014passed by the Addl. District Judge, Jalandhar whereby orderdated 09.12.2014 passed by the Civil Judge (Jr. Divn.),Jalandhar was upheld and the objections filed by the petitionerunder Section 47 CPC were summarily dismissed. 2. Brief facts are that a suit for specific performance ofagreement to sell dated was filed by the decree-holder/respondent No.1 against the defendant/respondent No.2in respect of shop No.2 in Chaugitti, Tehsil and DistrictJalandhar measuring 140 sq. ft. shown in red colour in the siteplan comprised in Jhasra No.1935/1825-1826-485/21 min in thearea of village Chaugitti which was bounded as under:- East Property of Surjit Kaur West Road North Property of Surjit Kaur South Property of Surjit Kaur In the alternative a suit for recovery of Rs.3,20,000/- i.e.total of the earnest money along with interest @ 24% perannum was claimed. Permanent injunction was also soughtrestraining the defendant/respondent No.2 from alienating thesuit property except in favour of the plaintiff/respondent No.1. 3. Respondent No.2 was duly served and even she filedwritten statement and thereafter proceeded against ex parte.Counsel appearing on her behalf pleaded no instructions on27.11.2007. The suit was ultimately decreed by the trial Courtvide judgment and decree dated 09.04.2009. 4. On the day of passing the decree, thedefendant/respondent No.2 sold the property in favour of thepetitioner vide registered sale deed dated 09.04.2009 for aconsideration of Rs.2,80,000/-. The property forming subjectmatter of the aforesaid sale deed was shop No.2, measuring140 sq. ft. measuring 7'-0'’ x 20'-0'’ along with rights in roofsituated in Abadi Chougiti, Tehsil and District Jalandharbounded as under:- East Malkiat Singh West Road North Malkiat Singh Sought Malkiat Singh The aforesaid property as per Jamabandi for the year2003-04, Khata No.420/443, 414/437, comprising KhasraNo.1935/1825-1826-485/21 (0-0), 1935/1825-1826-485/12/2(0-10) was claimed to be owned and possessed by thepetitioner. 5. In the execution filed by the decree-holder/respondentno.1, petitioner filed objections under Section 47 CPC read withOrder 21 Rule 101 CPC. The objections were dismissed by theexecuting Court vide order dated 09.12.2014 on the ground thatthe objections filed by the objector cannot be entertained in viewof the petitioner being vendee lis pendens and the objectionswere hit by Order 21 Rule 102 CPC. The order passed by theexecuting Court was upheld in appeal vide order dated24.12.2014. 6. The objections were dismissed by theexecuting Court vide order dated 09.12.2014 on the ground thatthe objections filed by the objector cannot be entertained in viewof the petitioner being vendee lis pendens and the objectionswere hit by Order 21 Rule 102 CPC. The order passed by theexecuting Court was upheld in appeal vide order dated24.12.2014. 6. Learned counsel for the petitioner submitted that thedimensions of the property purchased by the petitioner vide saledeed dated 08.04.2009/09.04.2009 were different than theproperty mentioned in the civil Court decree. East, North andSouth directions of the suit property were different in both theaforesaid transactions. In the sale deed properties of MalkiatSingh were situated towards East, North and South directions ofthe property so purchased, whereas in the suit the suit propertywas having properties of Surjit Kaur towards East, North andSouth directions. 7. By referring to the aforesaid factual position, learnedcounsel contended that the executing Court should have framedproper issues while deciding the objections filed by thepetitioner. All issues arising out of the suit were to be decided inthe same process by way of framing proper issues. Theobjections filed by the petitioner could not be treated asfrivolous, so as to dismiss them summarily. The trial Courtshould have issued notice to the defendant/respondent No.2instead of proceeding against ex parte when learned counsel forthe defendant/respondent No.2 pleaded no instructions. 8. I have heard the submissions made by learned counselfor the parties. 9. At the time of issuance of notice of motion on29.01.2015, following order was passed:- “Counsel submits that an ex parte decree forpossession by way of specific performance dated09.04.2009 was passed against respondent no. 2(Annexure P-3) pertaining to Shop No. 2 measuring 140 sq.ft. The petitioner was the bona fide purchaser havingpurchased the shop in question on the same day for a sumof Rs.2,80,000/-, which had a frontage of 7 ft. and depth of 20ft., being the owner of the adjoining property. The petitionerin the meantime, raised construction on the first floor of theshop and stairs were taken out from the shop going to theroof of the first floor. Reference is made to Annexure P-2,the photograph of the premises. The decree holder filedexecution on 19.10.2009 and deposited the balance on10.07.2013. In the meantime, an application for settingaside the ex parte decree has also been filed in November,2014 under Order 9 Rule 13 CPC by respondent no. 2(Annexure P-6). Reference is made to Annexure P-2,the photograph of the premises. The decree holder filedexecution on 19.10.2009 and deposited the balance on10.07.2013. In the meantime, an application for settingaside the ex parte decree has also been filed in November,2014 under Order 9 Rule 13 CPC by respondent no. 2(Annexure P-6). It is accordingly submitted that the Courts,by dismissing the objections in a summary manner only onthe ground that the petitioner has purchased the propertyduring the litigation, were not justified. Notice of motion. In the meantime, the petitioner shall not bedispossessed from the property in question till the next dateof hearing. At this stage, Mr. Kanwal Goel, Advocate acceptsnotice on behalf of contesting respondent no. 1 and praysfor time. Respondent no. 2 be served by way of dastiprocess also. Adjourned to 13.03.2015.” 10. Evidently, defendant/respondent No.2 has also filed anapplication under Order 9 Rule 13 CPC for setting aside the exparte judgment and decree dated 09.04.2009. Mere filing ofapplication under Order 9 Rule 13 CPC by respondent No.2would not advance the case of the petitioner as on the date offiling of the application, respondent No.2 had no subsistinginterest in the property so sold by him in favour of the petitioner,therefore, filing of such an application would be an eye wash.However the objections filed by the petitioner ought to havebeen decided by way of proper procedure as the petitioner hasprima facie demonstrated that the properties involved in thedecree as well as in the sale deed were having differentdimensions. The difference if any, could have been answered bythe executing Court by way of framing issues and allowing theobjector to lead evidence. Dismissal of the objections summarilywould not be in consonance with the settled principles of law. 11. It is true that all the irrelevant objections are notrequired to be dealt with by way of framing proper issues in viewof Rocky Tyres vs. Ajit Jain, 1998(2) R.C.R. (Civil) 17andvendee lis pendens has no right to resist or obstruct theexecution of decree being covered under Order 21 Rule 102CPC., but if the person in possession obstructs the execution ofdecree by showing some semblance of interest in the propertyon the basis of prima facie evidence, then at least objectionsshould be decided by way of following proper procedure. Theobjector has prima facie demonstrated before the Court that thedimensions of the property purchased by her were different thanthe property which was subject matter of the decree. Theobjector has prima facie demonstrated before the Court that thedimensions of the property purchased by her were different thanthe property which was subject matter of the decree. Even if, thepurchaser has purchased the property on the date of passing ofthe decree and has constructed a building over it(Annexure P-2), the executing Court was at least required toadjudicate the claim of the petitioner by framing necessaryissues and by allowing the petitioner to establish that theproperty purchased by her was different than the property whichwas decreed in favour of the decree holder. 12. Since the Courts below have not adverted to theaforesaid requirement, therefore, in my considered opinion, thepetitioner has a right to establish her objections to resist theexecution of decree in view of the property purchased by herviz.-a-viz. the suit land involved in the execution of the decree. 13. At one point of time, the parties were ad idem that thatthere were chances of amicable resolution of the dispute, butlater on the same could not fructify and this Court proceeded tohear the arguments on merits. 14. For the reasons recorded hereinabove, the impugnedorders dated 24.12.2014 passed by the Addl. District Judge,Jalandhar and 09.12.2014 passed by the Civil Judge (Jr. Divn.),Jalandhar are hereby set aside. The matter is remanded to theexecuting Court with a direction to decide the objections afreshby way of framing proper issues and allow the parties to leadevidence. The revision petition is accordingly disposed of.