Swaran Kumari vs Santonh Sandhu And Ors.
1993 Latest Caselaw 449 Del

JUDGMENT

Sat Pal, J.

(1) Smt. Swaran Kumari (hereinafter referred to as 'the decree holder') filed a suit bearing No.834/76 against Smt. Santosh Sandhu and her two sons, namely, Shri Maninder Singh and Lt. Brijendra Singh (hereinafter referred to as 'JDs') for possession and mesne profits, account and damages in respect of property bearing No.C-84,NDSE-II, New Delhi. A learned Single Judge of this Court vide judgment dated 1st May, 1991 decreed the suit for possession of the entire house and for mesne profits @ Rs.2,000.00 per month from 1st August, 1976 till 31st May, 1985 and(c) Rs.4,000.00 per month from 1st June, 1985 till date of decree/delivery of possession and interest on mesne profits @ 9% per annum against all the defendants with costs.

(2) Thereafter the decree holder filed execution No-131/91. Along with the execution application the decree holder filed an application bearing No.EA244/91for appointment of a Receiver to protect the interest of the decree holder and to ensure that the judgment debtors would not dispose of the property. The execution No-131/91 and Ea 244/91 came up for hearing on 25th July, 1991 and a learned Single Judge of this Court issued notice to the JDs in execution petition as well as in the execution application for 5th October, 1991 and appointed Mr. P.P.S. Premi, advocate as Receiver. Meanwhile, one of the JDs, namely, Smt. Santosh Sandhu filed an appeal bearing No.FAO(OS) 181/91 against the order dated 25th July, 1991 passed by the learned Single Judge mentioned hereinabove. This appeal came up for hearing before D.B.I on 8th August, 1991 and on that day Smt. Santosh Sandhu gave the following undertaking on S.A. "Iunder take to vacate the premises in dispute voluntarily, in case I fail to obtain stay in appeal against the judgment/decree of the learned Single Judge dated 1st May, 1991,in a suit for my ejectment/dispossession, within two weeks of the refusal of the stay. It has been made clear to me that violation of stay order would mean that proceedings for contempt of court can be initiated against me, in which maximum punishment is six months simple imprisonment and a fine of Rs.2,000.00 ."

(3) In view of the above undertaking the Division Bench stayed the operation of the order dated 25th July, 1991 passed by the executing Court till the application for stay in appeal (which was yet to be filed on that date) against the judgment/decree of the learned Single Judge dated 1st May, 1991 was disposed of. It was further directed by the Division Bench that in case the stay application was dismissed, theappeallant(JD) shall not be dispossessed for a period of fifteen days thereafter.

(4) Smt. Santosh Sandhu then filed RFA(OS) 6/92 against the judgment/decree of the learned Single Judge dated 1st May, 1991. The said appeal was admitted by D.B.I on 9th March, 1992 but the application (CM 293/92) for stay of the judgment and decree was dismissed. The said Jd filed a Special Leave Petition bearing No.SLP(Civil) 4109/92 in the Supreme Court of India against the order dated 9th March, 1992 passed by the Division Bench of this Court dismissing her application for stay of the operation of the decree. The said Special Leave Petition was dismissed by the Supreme Court on 7th April, 1992 with the observation that she may apply for time to vacate the premises before the High Court. Thereafter, Smt. Santosh Sandhu filed application bearing Cm No.500/92 before D.B.I and the same was dismissed on 19th May, 1992.

(5) Smt. Santosh Sandhu again filed Special Leave Petition against the aforesaid order dated 19th May, 1992 passed by D.B.I, and obtained ex-parte stay which after hearing both parties was vacated and the Special Leave Petition was dismissed on 2nd June, 1992. Meanwhile, the Receiver took possession of the property.

(6) It may be pointed out here that during the pendency of the execution proceedings learned counsel for the Jd made a statement before the executing Court on 28th April, 1992 that "Smt. Santosh Sandhu was in actual physical possession of the entire property and she will not create any third party interest in the property."

(7) During the pendency of the execution proceedings, the present application bearing Ea No. 233/92 has been filed by one ShriS.K.Kapoor who has alleged that he was a tenant in the rear portion of the suit property consisting of two rooms, bath, kitchen etc. with rear courtyard and garage at a monthly rent of Rs.550.00 . In support of his application he has filed lease agreement purported to have been executed on 1st December, 1985 between Smt. Santosh Sandhu (her son Major B.S. Sandhu being the confirmingparty)andtheapplicant Shri S.K.Kapoor. The terms and conditions of the said agreement, inter alia, are that this lease will initially be for a period of five years commencing from 1st December, 1985 and can be renewed for subsequent period(s) of five years each at the sole option of the Lessee on the same terms and conditions. It has also been stated in this lease deed that the Lessee can sub-let the demised premises in part or whole if he so desires to do so under the powers of sub-letting so conferred on him under this agreement and the confirming party confirms the arrangement. Besides the copy of the lease deed the applicant has also filed various rent receipts purported to have been issued by Smt. Santosh Sandhu acknowledging the rent @Rs.550.00 permonth from 1st December, 1985 till 31st May, 1992.

(8) Mr. P.P. Malhotra, learned Senior Counsel appearing on behalf of the applicant drew my attention to paras 24 and 28 of the written statement and corresponding paras of the replication and submitted that even as per the case of the plaintiff, defendant No. I had been entrusted by the plaintiff to induct any tenant till the suit was filed. He, therefore, submitted that the applicant has been inducted as a tenant by Smt. Santosh Sandhu, who was defendant No. 1 in the suit and is one of the JDs and as such he was the legal tenant of the portion of the suit property. He, therefore, contended that the applicant cannot be dispossessed without impleading him a party to the proceedings. He also submitted that the order dated 29th April, 1992 passed by this Court does not bind the applicant/objector as he was not a party in those proceedings. He further submitted that the Receiver should be directed to hand over the possession of the portion of the property which was in possession of the applicant and thereafter the decree holder can move an application under Order 21 Rule 97 of the Civil Procedure Code (hereinafter referred to as 'the Code'). In support of his contentions the learned counsel has placed reliance on a judgment of the Supreme Court in Paul Brothers (Tailoring Division) and others vs . Ashim Kumar Mondal and others, ,ajudgmentofMadrasHighCourt in Penumeta Subbaraju vs Veegesena Seetharamaraju and another, Air 1916 Madras 323, a judgment of Allahabad High Court in Ram Dayal Vs. Asghar Khan, Ram Dayal vs. Asghar Khan, Air 1930 Allahabad 289, and a judgment of Bombay High Court in Anaji Thamaji Patil Vs.Ragho Bhivraj Patil and another, .

(9) Learned counsel for the applicant raised another contention that the Receiver could not take possession of the premises belonging to the applicant who not being a party to the suit was a third party. In support of this contention he placed reliance on two judgments of this Court in Harish Chand Rastogi vs. Hari Nath Rastogi and another, 1990 (3) Delhi Lawyer 128 and Kuldip Singh vs Charan Singh,AIR 1986 Delhi 297 and a judgment of Kerala High Court in Parvathi Chellamma and another vs Hussan Pillai Mohammed Abdul Khader and others, Air 1973 Kerala 208.

(10) Lastly, the Learned counsel contended that the fact that the applicant was in possession of the portion of the suit premises, can be verified from the list of articles lying in that portion, copy of which has been filed by the applicant. He also submitted that the applicant was having even a telephone installed at the said premises in his own name.

(11) Mr. Arun Mohan, learned Senior Counsel, appearing on behalf of the decree holder submitted that even according to the facts mentioned in the application the applicant has been inducted as a Lessee by the Jd with effect from 1 st December, 1985 i.e. much after the filing of the suit for possession and mesne profits by the decree holder. He further submitted that the alleged lease agreement appears to be a fabricated document from its mere reading. The agreement shows that the alleged lease is for a period of five years @ Rs.550.00 per month for a portion of the house in a postcolony, NDSE Part-II, New Delhi with an option to the Lessee to renew it for another period of five years and further the Lessee has been permitted to sub-let these premises. He further submitted that the telephone which was installed vide Ob dated 4th November, 1991 and was disconnected on 4th June, 1992. He, however, submitted that in any case even according to the submissions made in the application the applicant was inducted as a tenant with effect from 1st December, 1985 i.e.much after the filing of the Suit No-834/76. He, therefore, contended that in terms of Order 21 Rule 102, Rules 98 and 100 shall not apply to the dispossession of any person to whom the Jd had transferred the property after the institution of the suit in which the decree was passed. He further contended that the applicant as such has no locus standi to be heard by this Court against the dispossession of the suit property. In support of his contention the learned counsel placed reliance on a Division Bench judgment of this Court in Tej Pal Singh vs. Hardit Singh, (1980) 18 Dlt 295.

(12) I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have also perused the record. It is the case of the applicant himself that he was inducted as a tenant by Smt. Santosh Sandhu in the year 1985. Assuming this to be so, this would be a transfer by the Judgment debtor in favor of the objector, after the institution of the suit in which the decree was passed. As stated hereinabove, Smt.Santosh Sandhu had given an undertaking before D.B.I. that " I undertake to vacate the premises in dispute voluntarily in case I fail to obtain stay in appeal against the judgment/decree of the learned Single Judge dated 1st May, 1991,in a suit for my ejectment/dispossession, within two weeks of the refusal of the stay." She had not mentioned in the undertaking that any portion of the suit property was in the possession of a tenant. Again on 29th April, 1992 in the execution proceedings learned counsel for the JDs stated that Smt. Santosh Sandhu was in actual physical possession of the entire property and she would not create any third party interest in the property. Keeping in view these facts, the lease deed, prima facie, does not appear to be a bona fide one. But in any case even according to the averments made in the application the applicant was inducted as a tenant in December 1985 i.e.much after the suit for possession and mesne profits was filed by the decree holder. In terms of Order 21 Rule 102 of the Code, the applicant has no locus standi to resist or obstruct in the execution of the decree for possession of the suit property. The view I have taken is supported by a judgment of this Court in Subash Chandra Jain vs.Amit Jain and others, 1989(2) Delhi Lawyer399. A Division Bench of this Court in the case of Tej Pal Singh (supra) also observed that under Order 21 Rule 98(2) the Court may put the decree holder into possession of the property if it is satisfied that the obstruction was occasioned by any transferee where such transfer was made during the pendency of the suit or execution proceedings. Section 52 of the Transfer of Property Act, 1882 is also attracted. In view of this I do not find any merit in this application.

(13) The contention of the learned counsel for the applicant that the Receiver had no right to take possession of the portion of the suit premises which was in possession and the applicant who was a third party is also without any merit in view of the fact that the applicant admittedly was inducted as a tenant after the suit had been filed. The judgment in the case of Harish Chand Rastogi (supra) is of no assistance to the applicant as the facts of that case are altogether different from the facts of the present case. In the case of Harish Chand Rastogi (supra) decree had not yet been passed and as such the question of execution was not before the Court. similarly, the ratio in the case of Parvathi Chellama (supra) is not relevant to the facts of the present case as in that case the applicant who was adversly affected by the appointment of the Receiver had claimed ownership of the property in question. The ratio of the judgments in the cases of Ram Dayal, Anaji Thamaji Patil and Penumeta Subbaraju (supra) are again not relevant to the facts of the present case as in all those cases the tenant had not been inducted after the filing of the suit. Similarly, the judgment of the Supreme Court in Pal Brothers (supra) is of no assistance to the applicant as in that case also the tenant was not inducted by the judgment debtor after filing of the suit.

(14) In view of the above discussion, the application is dismissed. The parties are, however, left to bear their own costs.

(15) LISTEX.No.131/91 for further proceedings on 12th August, 1993.