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2019 DIGILAW 738 (RAJ)

Anju Devi v. Trilochan Prasad

2019-03-05

P.K. LOHRA

body2019
JUDGMENT P K Lohra, J. - By the instant revision petition, petitioner-objector has challenged order dated 21st of December,2018 passed by Addl. District Judge, Raisinghnagar (for short, 'learned executing Court') in Execution Case No.35/15. By the order impugned, learned executing Court has rejected objections of the petitioner under Order 21 Rule 36 and Section 47 CPC. 2. The facts, in brief, are that respondent-decree-holders filed a suit for specific performance of contract against third respondent Girish Kumar pertaining to shop No.62 measuring 20 x 40.5 sq.ft. at Raisinghnagar. The agreement to sale was executed by third respondent Girish Kumar on the strength of Will dated 5th of January,2009 executed in his favour by his grandfather Onkarmal. During pendency of the suit, the parties entered into compromise and on the strength of compromise, the suit was decreed. When the decree was put to execution, on behalf of petitioner, objections were filed under Section 47 read with Order 21 Rule 36 CPC. In the application, the petitioner averred that shop in question was not exclusively owned by Onkarmal inasmuch as his two sons Purshottam and Leeladhar were having 1/3rd share each in the property. It is also pleaded that petitioner has entered into agreement to sale of 1/3rd share each of Purshottam and Leeladhar from the disputed shop in the year 2017 and suit for specific performance of contract in this behalf is pending since the year 2018. With all these facts, the execution of the decree was resisted by urging that it is a collusive decree and therefore his rights cannot be defeated on the strength of such decree. 3. I have heard learned counsel for the parties and perused the materials available on record. 4. In support of his arguments, learned counsel for the petitioner has placed reliance on a decision of Supreme Court in Ratanlal Jain & Ors. Vs. Uma Shankar Vyas & Ors.,2002 3 SCC 656 . 5. Per contra, learned counsel for the respondents has placed reliance on judgment of this Court in Banwarli Lal & Anr. Vs. Chhabil Das & Ors., (2018) 2 CivCC 375 (Raj). 6. There remains no quarrel that respondent-decree-holders have sought execution of decree in their favour for specific performance of contract relating to property in question and the said decree is still holding the field. Vs. Chhabil Das & Ors., (2018) 2 CivCC 375 (Raj). 6. There remains no quarrel that respondent-decree-holders have sought execution of decree in their favour for specific performance of contract relating to property in question and the said decree is still holding the field. In execution of decree for specific performance of contract, a third party cannot inter-meddle by raising objections under Section 47 CPC. The contention of the petitioner that shop in question was having 1/3rd share each of Purshottam and Leeladhar too cannot be examined under Section 47 CPC or in an application under Order 21 Rule 36 CPC more particularly when the alleged agreement to sale in favour of the petitioner came into offing almost two years after passing of the compromise decree in favour of respondent-decree-holders. 7. The judgment of Supreme Court in Ratanlal Jain & Ors. (supra) is clearly distinguishable inasmuch as it was a case wherein the incumbent was in possession of the property as tenant. The right of a tenant cannot be equated with someone who has allegedly entered into agreement to sale with certain individuals who were not party to the earlier suit and also made no endeavour to question a decree passed by a competent Court. The testamentary instrument executed in favour of third respondent by Onkarmal pertaining to disputed property too was never challenged by both Purshottam and Leeladhar. This short of situation further raises serious doubts about their bona fide and authority to sale disputed shop by entering agreement to sale. 8. In view thereof, in my considered opinion, learned executing Court has not committed any illegality or material irregularity in exercise of its jurisdiction while rejecting the objections of the petitioner. Moreover, it is also not a case of failure on the part of executing Court to exercise its jurisdiction so vested in it. 9. Consequently, the revision petition fails and the same is hereby dismissed summarily.