Inderjeet Singh And Anr. vs Kamla Rani Mehta And Ors.
2006 Latest Caselaw 1981 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. Late Shri Paras Ram Mehta and Shri Mela Ram, who are brothers, were co-owners of the property measuring 100 sq. yds. situated in khasra No. 1/37, Village Nangli Jalab (WZ-271, Krishna Nagar Extension), Tilak Nagar, New Delhi. Shri Mela Ram passed away on 27.10.1978. Shri Paras Ram Mehta filed a suit against the legal heirs of late Shri Mela Ram for permanent and mandatory injunction in respect of the suit property to the extent of the half-share owned by late Shri Mela Ram.

2. Shri Paras Ram Mehta claimed rights in the property on the basis of a Will of late Shri Mela Ram dated 05.09.1977. It may be noticed that a Probate Petition No. 245/1978 was filed before the Court of the District Judge, Delhi, which was contested by the legal heirs of late Shri Mela Ram. The Suit bearing No. 782/1985 for the permanent and mandatory injunction was filed thereafter. Along with the suit, application for interim relief was filed and interim orders were granted on 08.11.1985. Shri Paras Ram Mehta died on 03.06.1987 and thereafter the legal heirs of Shri Paras Ram Mehta were substituted in place of the original plaintiff. An amendment to the plaint was also sought to convert the suit into one of possession / joint possession. The suit came to be ultimately decreed ex-parte on 24.12.1994 and the decree was subsequently amended on 22.02.1995. The execution petition was filed on 22.03.2000 and the petitioners herein filed objections.

3. It is the case of the petitioners that the property in occupation of the petitioners was different from the property in respect of which decree had been passed. However, these objections were dismissed and the petition filed under Article 227 of the Constitution of India (for short, 'the Constitution') was also not entertained, but was stated to be withdrawn by the petitioners for them to avail of the appropriate legal remedy.

4. The petitioners thereafter filed an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter to be referred to as, 'the said Code') along with the application for condensation of delay. It is the case of the petitioners that the suit property was already transferred by the legal heirs of late Shri Mela Ram to the extent of 250 sq. yds. to Shri Ajit Singh Oberoi on 22.05.1984 and thereafter on 27.12.1989, Shri Ajit Singh Oberoi is stated to have transferred the property to Smt. Harwant Kaur, who in turn sold the same to Shri Vinod Luthra vide Sale Deed dated 20.09.1993. Petitioner No. 1 purchased 250 sq. yds. from Shri Vinod Luthra on 21.04.1994, while the remaining 250 sq. yds. was purchased by petitioner No. 2 again through a chain of such purchasers.

5. The trial court dismissed the application of the petitioners vide order dated 20.10.2004 and the appeal preferred against the same was also dismissed on 19.03.2005. The present proceedings have been filed under Article 227 of the Constitution seeking to challenge the said order.

6. It is trite to say that while exercising jurisdiction under Article 227 of the Constitution, it is not the function of this Court to interfere for a mere wrong decision without anything more as the supervisory jurisdiction is limited to seeing that an inferior court or tribunal functions within the limits of its authority. This is apparent from the pronouncement of the Apex Court in Mohd. Yunus v. Mohd Mustaqim and Ors. . It is, thus, within such parameters that the impugned order has to be scrutinized.

7. It is also relevant to take note of another factor and that is the fate of the probate petition. The same was initially dismissed by the Additional District Judge and the appeal was allowed by this Court in the year 2002. The judgment in the probate jurisdiction is a judgment in rem and, thus, the title of the legal heirs of late Shri Paras Ram Mehta in pursuance to the Will of late Shri Mela Ram stands established.

8. The substratum of the plea of the petitioners before the trial court was that they were bona fide purchasers of the property.

9. On the other hand, the respondents contended that the so-called series of transactions without registered documents was only an attempt to frustrate the claim of the respondents. The sale by registered document did not take place till the year 1994.

10. Learned Civil Judge dismissed the application of the petitioners as not maintainable on the ground that such an application could be filed only by the defendant and not a third person. The appellate court found that while considering an application under Order IX Rule 13 of the Code, the merits of the case need not be gone into, but also simultaneously held that it should be the defendant, who was proceeded ex-parte, who can maintain such an application. Another aspect considered by the appellate court is that the petitioners filed objections under Order XXI Rule 97 of the Code and the executing court after taking evidence and hearing arguments finally decided the objections in terms of the order dated 03.06.2003. The appeal filed was subsequently withdrawn and, thus, the petitioners cannot be permitted to re-agitate the issue. The last aspect considered by the appellate court is that the petitioners had filed two separate suits for declaration and injunction in respect of the suit property and both the suits were dismissed. It is thereafter that the aforesaid objections in execution proceedings were filed, which were also dismissed and so was the appeal. The petition filed under Article 227 of the Constitution was thereafter dismissed as withdrawn.

11. Learned senior counsel for the petitioners seeks to contend that in view of the judgment of the Apex Court in Raj Kumar v. Sardari Lal and Ors. where it has been now held that the word 'he' in Order IX Rule 13 of the Code cannot be construed with rigidity and restrictively so as to exclude a person who has stepped into the shoes of the defendant from moving an application for setting aside the ex-parte decree. It was, however, further observed that a transferee pendente lite is treated in the eyes of law as a representative-in-interest of the judgment debtor and is bound by the decree passed against the judgment debtor though the transferee had not chosen to come on record by taking recourse to the provisions of Order XXII Rule 10 of the Code. A lis pendens transferee was held entitled to move an application under Order IX Rule 13 of the Code for setting aside a decree passed against his transferor even if he had not been brought on record under Order XXII Rule 10 of the Code. This was in view of the fact that a person, who is liable to be proceeded against in execution of the decree or can file an appeal against a decree, though not a party to the suit or decree, does have locus standi to move an application for setting aside an ex-parte decree passed against the person in whose shoes he has stepped in.

12. Learned Counsel for the respondents, on the other hand, has referred to the judgment of the Apex Court in Surjit Singh and Ors. v. Harbans Singh and Ors. , which has considered the effect of a court's order and its violation and the right of an assignee to be imp leaded. It was held that an alienation / assignment made in defiance of the court's orders irrespective of whether it was of the property per se or of the decree pertaining to the property was liable to be treated by the court as non est and the assignees were not even entitled to be imp leaded. In such a case, the principle of lis pendens was held not applicable.

13. A conspectus of the aforesaid legal position, thus, shows that while the judgment in Raj Kumar's case (supra) makes available the option to the transferee of a property in a lis pendens matter to not only be imp leaded as such but even in the absence of impleadment to seek re-opening of a decree under Order IX Rule 13 of the Code, the position would be different where there are restraint orders against such transfer. Raj Kumar's case (supra) does not discuss the facts of a case covered by a restraint order, but only where the principle of lis pendens applies. The judgment in Surjit Singh and Ors.'s case (supra) is squarely applicable to the facts of the case since it has been held that where the transfer is contrary to a restraint order, the rule of lis pendens would not apply.

14. In the present case, the registered document has arisen only in the year 1994 even though the interim orders had been passed on 08.11.1985. It is obvious that a series of transactions has been made only to avoid and frustrate the decree of the respondents. Thus, even if the petitioners had been duped, they cannot have a better right than the original legal heirs of late Shri Mela Ram, who have transferred the property contrary to the restraint order.

15. A specific query was posed to learned Counsel for the petitioner as to whether the purchasers took any precaution to verify the factum of the legal heirs being entitled to deal with the property in question either through mutation letter or otherwise. The answer to the same is in the negative. The series of transactions itself shows the efforts to frustrate the possible decree.

16. A material fact noted above is that in view of the dispute about the Will through which the respondents were claiming title, probate petition was filed and those proceedings have ultimately culminated in the grant of probate by this Court in the year 2002. The same is a judgment in rem.

17. The petitioners exercised their rights by filing objections under Order XXI Rule 97 of the Code, which were decided against the petitioners after trial. The appeal against the same was dismissed and thereafter the proceedings filed under Article 227 of the Constitution were withdrawn. It is thereafter that the process of filing the application under Order IX Rule 13 of the Code started. In fact, prior to the objections, the petitioners also filed two suits for declaration and injunction and both of them were dismissed.

18. It is obvious that the petitioners are taking recourse to various forums to somehow frustrate the decree of a competent court and in view thereof cannot be held entitled to any relief.

19. The petition is without any merit.

20. Dismissed.

CM No. 6471/2005

Dismissed.