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2022 DIGILAW 2086 (PNJ)

Tejpal Singh v. Ramesh Kumar Saini

2022-12-01

HARKESH MANUJA

body2022
JUDGMENT Harkesh Manuja, J. (Oral) - By way of present revision petition challenge has been made to the orders dated 16.02.2022 and 13.05.2022 passed by the Executing Court whereby, objections petition filed at the instance of petitioner who happens to be legal heir of one of the judgment debtor has been dismissed and the sale of his property by way of auction held on 18.01.2022 has been confirmed. 2. Facts leading to the present case are that a decree for recovery of mesne profit @ Rs.5,000/- per acre, per year was passed in favour of respondent/decree holder by the Court of learned Additional Civil Judge (Sr.Divn.), Ajnala, on 23.07.2010. Grandfather of the present petitioner namely Nihal Singh son of Mohan Singh happened to be one of JD in the judgment and decree dated 23.07.2010 whose land situated in Village Sheikh Bhatti was ordered to be attached in the execution proceedings vide order dated 20.10.2016. In an execution proceedings, an application dated 17.01.2020 came to be filed at the instance of decree holder praying for restraining the present petitioner from transferring/alienating the aforementioned land allegedly inherited by him from Nihal Singh i.e. his grandfather by virtue of registered Will dated 16.06.2017 followed by mutation No. 1262. On the aforesaid application, executing Court vide order dated 18.02.2020, directed attachment of the property inherited by Tejpal Singh from his grandfather and further alienating the same in any manner till the satisfaction of the executing proceedings. 3. Thereafter, as ordered by the executing Court, auction of 22 Kanai of land originally owned by JD-Nihal Singh situated in village Sheikh Bhatti was put to auction on 18.01.2022. The 'auction purchaser' who happened to be the son of the decree holder deposited 25% of the auction amount on 21.01.2022 and prayed for time for deposit of the balance 75% amount within a period of 15 days, which even was duly made. 4. After the deposit of entire amount of auction at the hands of auction purchaser, objections under Section 47 of the Code of Civil Procedure read with Section 151 CPC were filed on 15.02.2022 at the instance of petitioner, on the ground that he being one of the successor of Nihal Singh as regards land in question which was put to auction was required to be impleaded as necessary party in the executing proceedings before putting it to auction. On notice, a detailed reply to those objections was filed at the instance of respondent No.l decree holder on 23.10.2022. Vide order dated 16.03.2022, the executing Court dismissed the same and later vide its order dated 13.05.2022 confirmed the auction proceedings/sale in favour of auction purchaser by issuance of sale certificate. By way of present revision petition challenge has been made to the aforesaid orders dated 16.03.2022 as well as 13.05.2022. 5. By placing reliance upon Order 22 Rule 12 CPC and taking aid to judgment passed in case of ' V. Uthirapathi Vs. Ashrab Ali, reported as 1998 AIR (Supreme Court) 1168, as well as Section 50 of the Code of Civil Procedure, it has been contended on behalf of the petitioner that once he inherited the property in question from his grandfather namely Nihal Singh, one of the JD by way of registered Will dated 16.06.2017, he was at least required to be impleaded as the legal heir of JD before passing any order as regards the property in question inherited by him. Learned counsel for the petitioner, further submitted that the non-impleadment of the petitioner in the executing proceedings has substantially prejudiced his rights under Order 21 Rule 89 of the Code of Civil Procedure, whereby, he could have availed his remedies/rights for setting aside the sale deed by deposit of the decretal amount with the executing Court. Learned counsel for the petitioner also submits that in fact the legal heirs who were impleaded at the instance of decree holder vide order dated 09.09.2019 were the father and real uncle of the petitioner who in fact were not the successors of the estate left by the deceased Nihal Singh i.e. the JD as per the registered Will dated 16.06.2017. Learned counsel also submitted that in order to show his bona fide, the petitioner already deposited the auction amount along with an additional sum of Rs.50,000/- before the executing Court in pursuance to an order dated 12.09.2022, passed by this Court. 6. Learned counsel also submitted that in order to show his bona fide, the petitioner already deposited the auction amount along with an additional sum of Rs.50,000/- before the executing Court in pursuance to an order dated 12.09.2022, passed by this Court. 6. On the other hand, learned counsel for respondents No.l to 3 submits that non-impleadment of the petitioner being the legal heir of deceased JD did not cause any prejudice to his rights as even according to his own admission made in the present revision petition at page 8 of the paper book in para No.6(xiii), he admits of having received notice of application P6 dated 17.01.2020 moved at the instance of decree holder seeking an injunction order against the present petitioner from alienating the property in question and thus was well aware of the execution proceedings all along. Learned counsel for respondents No.l to 3 also submits that the father and uncle of the petitioner herein were got impleaded at their instance before the executing Court, way back on 09.09.2019 and they were even appearing and contesting the executing petition since then. It has also been pointed out that in the objection petition dated 15.02.2022 filed at the instance of petitioner herein it has no where been stated that he was not having any knowledge of pendency of the execution proceedings rather the only objection was that he was never impleaded as a necessary party in the execution petition at the instance of decree holder. 7. I have heard learned counsel for the parties and have gone through the paper book. I am unable to accept the contentions raised on behalf of the petitioner. In the present case, the decree for mesne profit was passed in favour of respondents No.l and 2 way back on 23.06.2010. The land of one of the judgment debtor namely Nihal Singh, situated in VillageSheikh Bhatti was ordered to be attached by the learned executing Court on 20.10.2016. Before the same could be auctioned, Nihal Singh expired somewhere between 2018-19. The two sons of deceased Nihal Singh-Judgment Debtor namely Ananta Singh and Basant Singh were ordered to be impleaded as his legal heirs before the executing Court on 09.09.2019 and one out of the two namely Basant Singh happened to be the father of present petitioner. Before the same could be auctioned, Nihal Singh expired somewhere between 2018-19. The two sons of deceased Nihal Singh-Judgment Debtor namely Ananta Singh and Basant Singh were ordered to be impleaded as his legal heirs before the executing Court on 09.09.2019 and one out of the two namely Basant Singh happened to be the father of present petitioner. On 17.01.2020, respondents No.l and 2 i.e. the decree holders moved an application before the Executing Court for putting the aforementioned land of Village 'Sheikh Bhatti' to auction in discharge of the decree with the prayer that the present petitioner i.e. Tejpal Singh, claiming himself on the basis of Will dated 02.06.2017 executed by deceased Nihal Singh in his favour was trying to alienate the same to the third parties. The prayer made in the aforesaid application, was allowed by the executing Court vide order dated 18.02.2020 whereby, the present petitioner was restrained from alienating the suit property besides even passing the fresh order of its attachment. 8. In furtherance, the aforesaid land situated in village Sekh Bhatti was put to auction on 18.01.2022, in favour of respondent No.3 to which the present petitioner filed his objection under Section 47 of the Code of Civil Procedure and the same were declined vide order dated 16.03.2022 by the Executing Court which has been impugned herein by way of present revision. 9. A perusal of Section 50 of the Code of Civil Procedure, shows that in case a Judgment Debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against legal representative of the deceased and the said legal representative shall be liable only to the extent of property of the deceased which has come to his hand and has not been duly disposed of. The term legal representative has further been defined under Section 2(11) CPC to inter alia means a person who in law represents estate of a deceased persons. The term legal representative has further been defined under Section 2(11) CPC to inter alia means a person who in law represents estate of a deceased persons. Section 2(11) and Section 50 of the Code of Civil Procedure are reproduced hereunder: Section 2(11) and Section 50 of the Code of Civil Procedure 'Section 2(11) "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or issued in a representative character the person on whom the estate devolves on the death of the party so suing or sued; Section 50 CPC '(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased. (2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit." 10. Having gone through the facts and circumstances of the present case and the above mentioned provision, I do not find any substance in the submissions made on behalf of the petitioner to the extent that the auction proceedings pertaining to the village Sheikh Bhatti which allegedly was succeeded by the petitioner on the basis of Will dated 16.06.2017 were to be held illegal in the absence of he having been impleaded in the executing proceedings as legal representative of Judgment Debtor Nihal Singh. From the facts and circumstances narrated hereinabove, it is apparent that the father and uncle of the present petitioner were duly impleaded as legal representatives of judgment debtor Nihal Singh before the executing Court on 09.09.2019. Even as per the averments made in the present revision petition at page 8 of the paper book, the petitioner himself accepts having received notice of the application dated 17.01.2020 filed at the instance of respondents No.l and 2/DHs with a prayer for restraining the petitioner from alienating the suit property inherited by him from deceased Nihal Singh. Even as per the averments made in the present revision petition at page 8 of the paper book, the petitioner himself accepts having received notice of the application dated 17.01.2020 filed at the instance of respondents No.l and 2/DHs with a prayer for restraining the petitioner from alienating the suit property inherited by him from deceased Nihal Singh. In these circumstances, once the petitioner was having complete knowledge about the pendency of the executing proceedings filed at the instance of respondents No.l and 2 based on a decree passed against Nihal Singh, the petitioner himself was even required to approach the executing Court at the earliest opportunity to establish his claim upon the property based on the basis of aforesaid Will. No reason or justification has been rendered at the instance of the petitioner, for having waited for a period of almost 2 years to approach the executing Court and that too after the auction having been conducted and a substantial amount having been deposited by the auction purchaser i.e. respondent No.3. 11. In fact, Section 50 of the Code of Civil Procedure does not even enjoins the decree holder to implead the legal representatives of judgment debtor and only talks about execution of decree against the legal representatives. More than that, a conjoined reading of Section 2(11) and Section 50 of the Code of Civil Procedure also envisions that on account of death of judgment debtor before the decree being fully satisfied, the holder of decree may apply to the Court which passed it to execute the same against the legal representative of the deceased and the legal representative, further means a person who in law represents the estate of the deceased person. In fact Section 2(11) CPC does not even appear to mean the whole of the estate of deceased. Reference in this regard can be made to observations made in Para-18 of the judgment passed by Hon'ble Supreme Court in case of Andhra Bank Ltd. Vs. R. Srinivasan and others 1962 AIR (Supreme Court) 232 ".............In regard to the intermeddlers they are said to represent the estate even though they are in possession of parcels of the estate of the deceased and so there should be, no difficulty in holding that the clause "a person who in law represents the 'estate of a deceased person" must include different legatees under the will. There is no justification for holding that the "Estate" in the context must mean the whole of the estate..........." 12. Applying the aforesaid principle even the father and uncle of petitioner were duly representing the estate of deceased Nihal Singh before the executing Court much before the putting of land of village Sheikh Bhatti to auction that too within the knowledge of the petitioner as admitted by him even in the present revision petition. 13. Further, conduct of the petitioner in the facts and circumstances of the present case does not appear to be bona fide. Despite having complete knowledge about the pendency of the execution proceedings, the petitioner did not come forward to contest the same till the land was put to auction and the auction money was deposited by the auction purchaser and thus, the judgment cited by learned counsel for the petitioner in case of V. Uthirapathi Vs. Ashrab Ali, 1998 AIR (Supreme Court) 1168, does not apply to the facts and circumstances of the present case. 14. In view of the discussion made hereinabove, I do not find any merits in the present revision petition and the same is dismissed warranting no interference in the impugned orders dated 16.03.2022 and 13.05.2022 passed by the Executing Court. Pending applications, if any, shall stand disposed of.