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2025 DIGILAW 77 (RAJ)

CHANDRA SHEKHAR SINGH v. KANHAIYA LAL AND ANR.

2025-01-10

REKHA BORANA

body2025
ORDER : 1. The present revision petition has been preferred against the order dated 13.12.2010 passed by the learned Additional District Judge, Gulabpura, Bhilwara in Civil Misc. Appeal No.10/2010 whereby the learned Court proceeded on to affirm the order dated 01.11.2010 passed by the Civil Judge (Senior Division), Gulabpura whereby the objections under Order 21 Rule 58, CPC as preferred on behalf of the objector Chandra Shekhar Singh were rejected. 2. The facts are that execution proceedings were initiated in the year 2003 by one Kanhaiya Lal (respondent No.1) against Gopal Lal (respondent No.2) for execution of three decrees qua the suits decreed in his favour. In the said execution proceedings, objections under Order 21 Rule 58, CPC were filed by the present revision petitioner Chandra Shekhar Singh with a submission that Gopal Lal had executed an agreement to sell dated 16.11.1997 in his favour for a consideration amount of Rs.5,00,000/- qua the property which was attached in the execution proceedings. 3. It was further submitted that the possession of the property was handed over to him by Gopal Lal in the year 1997 itself as part consideration amount of Rs.4,50,000/- was paid to him at that point of time. But as one tenant Vinod Kumar was in possession of some portion of the property, the remaining consideration amount of Rs.50,000/- was not paid and it was agreed between the parties that the same would be paid and the sale deed would be executed after Gopal Lal having evicted Vinod Kumar from the property in question. 4. However, the sale deed could not be executed. 5. When the notice of attachment was affixed on the property in question in the year 2004, the petitioner came to know about the decrees passed in favour of Kanhaiya Lal and of the present execution proceedings. Therefore, the objections were filed by him within time. 6. It was further submitted on behalf of the petitioner that the agreement to sell dated 16.11.1997 being of a date prior to the decrees in question, there was definitely a cloud on the property and without deciding the issue whether the objector was entitled for a decree for specific performance, the property could not have been attached. The right of the objector, which was created prior to the decree, could not have been obliterated by the attachment. 7. The right of the objector, which was created prior to the decree, could not have been obliterated by the attachment. 7. In support of his submissions, learned counsel for the petitioner relied upon the following two judgments: i. Vannarakkal Kallalathil Sreedharan vs. Chandramaath Balakrishnan & Anr., (1990) 3 SCC 291 ii. Kancherla Lakshminarayana vs. Mattaparthi Syamala & Ors., (2008) 14 SCC 258 8. While relying upon the case of Vannarakkal (supra), counsel submitted that the rights of the attaching creditor cannot be allowed to override the contractual obligation arising from an antecedent agreement for sale of the attached property. 9. The learned Executing Court while rejecting the objections as raised by the petitioner specifically held that firstly , the execution of the alleged agreement to sell (Exhibit 1) was not even proved as the judgment debtor Gopal Lal did not even enter the witness box. Secondly , the transfer of the consideration amount qua the alleged agreement to sell was also not proved. 10. The Court further observed that there was nothing on record to show as to why the alleged agreement to sell dated 16.11.1997 was not sought to be got enforced by the petitioner for a period of more than 13 years. 11. At this stage, it is relevant to note that the present revision petition stood dismissed against respondent No.1-Kanhaiya Lal (decree holder) vide order dated 16.05.2023 as his legal representatives were not substituted after his death. 12. Counsel appearing for respondent No.2-Gopal Lal (judgment debtor) raised two preliminary objections: i. Firstly, the present revision petition is not maintainable as the order impugned was passed on the objections under Order 21 Rule 58, CPC. As per Order 21 Rule 58(4), CPC the order dated 01.11.2010 passed under the said provision shall have the same force as if it were a decree. Meaning thereby, the said order being equivalent to a decree was amenable to an Execution First Appeal only. However, the petitioner objector at the first instance, filed a Misc. Appeal before the Additional District Judge against the same which was also not maintainable and the present revision petition against the order dated 13.12.2010 is also not maintainable as it is only an Execution Second Appeal which ought to have been laid against the said order. ii. However, the petitioner objector at the first instance, filed a Misc. Appeal before the Additional District Judge against the same which was also not maintainable and the present revision petition against the order dated 13.12.2010 is also not maintainable as it is only an Execution Second Appeal which ought to have been laid against the said order. ii. Secondly, the present revision petition having already been dismissed against respondent No.1, the decree holder, the same would definitely not survive against respondent No.2, the judgment debtor. The petition having been dismissed against the decree holder, he is entitled to get the decree executed. 13. Responding to the above preliminary objections, counsel for the petitioner submitted that the rejection of the petition against respondent No.1 cannot deprive the petitioner of his right to have his objection decided on merit as the cause would definitely survive against respondent No.2. 14. Counsel submitted that as per Order 21 Rule 58, CPC the petitioner is estopped from filing a separate suit and hence, the objections whatsoever as raised by the petitioner requires to be decided in the present proceedings. 15. On merit, counsel submitted that the learned Executing Court did not even consider the veracity of the agreement in question and hence, the orders impugned deserve to be set aside. 16. Heard learned counsel for the parties and perused the material available on record. 17. So far as the maintainability of the present revision petition is concerned, admittedly, the same was filed in the year 2011 and even interim orders dated 19.01.2011 and 29.03.2012 were passed at that point of time. In view of the same, this Court does not deem it proper to dismiss the present revision petition on the said ground of maintainability, the same having been entertained in the year 2011 and not been objected to at that point of time. 18. So far as the effect of rejection of the present revision petition against respondent No.1 is concerned, in the opinion of this Court, despite the same, the petition would definitely survive against respondent No.2. The cause of the petitioner does survive against respondent No.2 who executed the alleged agreement to sell in his favour. 18. So far as the effect of rejection of the present revision petition against respondent No.1 is concerned, in the opinion of this Court, despite the same, the petition would definitely survive against respondent No.2. The cause of the petitioner does survive against respondent No.2 who executed the alleged agreement to sell in his favour. The reason is that even if the Court is not inclined to quash the execution proceedings qua respondent No.1, definitely a relief for refund of the consideration amount of Rs.4,50,000/- as alleged by the petitioner to have paid to respondent No.2, can definitely be granted if the same is found to have been proved on record.The present revision petition to that extent definitely survives against respondent No.2. 19. Having dealt with the preliminary objections, the Court would now proceed to adjudicate the merit of the case. 20. It is admitted on record that respondent No.2 Gopal Lal did not appear in the witness box. Further, there is no evidence on record to prove the consideration amount of Rs.4,50,000/- having been paid by the petitioner to respondent No.2 Gopal Lal. Further, it is the admitted case of the petitioner himself that the alleged agreement was executed on 16.11.1997 and prior to the filing of the present suit, he did not take any step to get the said agreement specifically performed. 21. As per the version of the petitioner himself, the alleged tenant Vinod Kumar was evicted from the property after a period of one year i.e. in the year 1998 but then too, no step whatsoever was taken to get the sale deed executed in his favour. 22. Interestingly, the petitioner claimed that he was handed over the possession of the property in question in the year 1997 itself but on the other hand he avers that he came to know of the attachment of the property in the year 2004. It is incomprehensible as to when the petitioner was in possession of the property, how come he did not come to know of the attachment of the property. 23. Further, even if the claim as raised by the objector is accepted as it is, the same is clearly barred by law of limitation. 24. It is incomprehensible as to when the petitioner was in possession of the property, how come he did not come to know of the attachment of the property. 23. Further, even if the claim as raised by the objector is accepted as it is, the same is clearly barred by law of limitation. 24. In terms of Article 54 of Part II of the Schedule to the Limitation Act, 1963, the remedy available to the petitioner for specific performance of the agreement dated 16.11.1997 was three years from the date fixed for the said performance. As per the version of the petitioner himself, the sale deed was to be registered on the tenant being evicted from the premise in question and the same was admittedly evicted after a period of one year. No proceeding whatsoever is admitted to have been undertaken by the petitioner since the year 1998 and till the year 2004. The claim, whatsoever, of the petitioner is therefore, clearly time barred. 25. So far as the judgments relied upon by learned counsel for the petitioner are concerned, the same are clearly distinguishable in the facts of the present case. Vannarakkal (supra) was a matter wherein a sale deed had already been executed between the parties prior to the date of attachment, and Khancherla (supra) was the case wherein a suit for specific performance of contract had already been filed prior to the attachment.Both not being the conditions in the present matter, the ratio of the said judgments would not apply to the present matter. 26. In view of the above observations and analysis, the orders impugned do not deserve any interference and the present revision petition is hence, dismissed. 27. Pending applications, if any, stand disposed of.