Delhi High Court
Yogender Kumar & Another. vs Ram Kishan Gupta & Another on 5 July, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 05.07.2011
+ Ex. F. A. No.18/2010 & CM No. 18758/2010
YOGENDER KUMAR & ANOTHER. ...........Appellants
Through: Mr.Ved Prakash Sharma and
Ms. Amrit Kaur Oberoi,
Advocates,
Versus
RAM KISHAN GUPTA & ANOTHER ..........Respondents
Through: Mr. Praveen Chauhan,
Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. The impugned order of the executing court is dated
27.09.2010. The objections filed by the petitioner/objector
(Yogender Kumar and Om Kumar) under Order 21 Rule 97 read
with Section 151 of the Code of Civil Procedure (hereinafter
referred to as the 'Code') had been dismissed.
2. The plaintiff/decree holder (Ram Kishan Gupta) had filed a
suit for specific performance in terms of an agreement to sell
dated 18.03.1988. His contention was that he had entered into an
agreement to sell to purchase the suit property i.e. (land
measuring 4 bighas 16 biswa bearing in khasra No.506, situated
at Village Naib Sarai, Tehsil Mehrauli, Delhi) from Samay Singh,
its erstwhile owner. Part payment had been made and the balance
amount of `3,85,000/- was yet payable; suit had accordingly been
filed. This suit had been decreed in favour of the plaintiff/decree
holder vide an ex-parte judgment and decree dated 02.05.1990.
Sale deed had been executed in favour of the decree holder on
15.07.2003 which was registered on 08.10.2007 and mutation had
also been effected in his name on 12.05.2008.
3. Before the executing court, the present petitioners/objectors
(Yogender Kumar and Om Kumar) had preferred objections under
order 21 Rule 97 of the Code. Their contention was that Pushpa
Singh had purchased 2100 square yards of constructed land from
Samay Singh vide agreement to sell, receipt, power of attorney
dated 05.01.1988; the petitioners had stepped into the shoes of
Pushpa Singh by virtue of an agreement to sell and other related
documents executed between themselves and Pushpa Singh dated
16.09.2008; they are in peaceful possession of this land since
16.09.2008; they had contested the execution filed by the decree
holder and objections as aforenoted had been filed by them along
with documentary evidence.
4. The executing court after consideration of the documents of
the respective parties had dismissed the objections of the
petitioner; the executing court was of the view that a registered
sale deed had been effected in favour of the decree holder under
the orders of the Court and since mutation of the land had also
been effected in favour of the said decree holder, the objections
were not maintainable.
5. Counsel for the objectors has vehemently contended that
the decree obtained by the decree holder was in fact a fraudulent
decree; it is liable to be set aside; Samay Singh was the only
defendant arrayed in the suit; his address had been shown as
Village Naib Sarai without any details of the house number or the
lane. Attention has been drawn to the order of the High Court
dated 19.01.2000 where in the execution proceedings, the High
Court had noted that the decree holder has not given the complete
address of Samay Singh; it was only thereupon i.e. on 19.01.2000
that the complete address of Samay Singh was disclosed to the
Court i.e. he being a resident of H-221, Valmikiwali Gali, Naib
Sarai, Tehsil Mehrauli, Delhi. This was on 19.01.2000. Suit had
been filed in the year 1989. Address of Samay Singh in the suit
proceedings was only described as Village Naib Sarai, Tehsil
Mehrauli, Delhi; house number and details of gali had not been
given; learned counsel for the respondent on repeated query has
no answer as to how subsequently on 19.01.2000 he learnt about
this address of Samay Singh. In the suit proceedings Samay Singh
had been proceeded ex-parte; the report of the process server was
that he has been served. Learned counsel for the objector has
drawn attention of this Court to the service report of Samay Singh
in the execution proceedings which reports are dated 17.08.2022
and 17.09.2002. In the report of process server dated 17.08.2002
it had been recorded that 'bahar chale gaye'; in the report of
17.09.2002, it had been recorded that 'no one lives there'; on
these two service reports, the Court had recorded a finding that
judgment debtor/Samay Singh stands served.
6. Record clearly shows that the address of Samay Singh had
not been correctly depicted in the suit proceedings although it
appears to have been known to the plaintiff and that is how it has
disclosed to the High Court on 19.01.2000. Contention of learned
counsel for the objector is that in these circumstances the ex
parte decree has been obtained by playing a fraud upon the court;
this submission cannot be ruled out straight away.
7. Counsel for the objector has further pointed out that the
procedure under Order 21 Rule 97 of the Code postulates that a
detailed scrutiny and enquiry has to be conducted by the
executing court; it is for this reason that it specifically stipulates
that no separate suit is required to be filed; provisions of Order 21
Rules 97 & 98 of the Code are wide enough to enable the
executing court to enter into a detailed enquiry to decided the
objections of such an objector. In AIR 1996 (Supreme Court 2050
Babulal Vs. Raj Kumar & others, the Apex Court while adverting
to the provisions of Order 21 Rule 98 of the Code read with Rule
103 had held that the procedure to deal with the objections of an
objector is prescribed in the Code itself; the executing court is
required to determine the questions which have been urged in a
detailed manner. This has been reiterated in AIR 1997 Supreme
Court 856 Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal &
Another.
8. The statutory scheme envisaged under Order 21 Rule 97 of
the Code in fact provides a remedy both to the decree holder as
well as to the obstructionist/objector to have their respective say
in the matter and to get a proper adjudication done before the
executing court which would be binding between the parties and a
separate suit would be barred with a view to ensure that
multiplicity of proceedings and parallel proceedings are avoided;
procedure provided in Order 21 Rules 97 to 103 of the Code is the
remedy available to a such concerned party to have their
grievance once and for all finally resolved in the execution
proceedings. There is no dispute to this proposition.
9. From the perusal of the impugned order it is evident that
the executing court has dismissed the objections of the objector
under Order 21 Rule 97 of the Code cursorily without giving him a
chance to the objector to prove the alleged fraud having been
played upon the court by the plaintiff/decree holder; vehement
contention of the objector being that Samay Singh was
deliberately not served at his correct address; a vague address
has been given in order that the matter could be proceeded ex-
parte and the decree could be obtained by the decree holder.
10. It is not in dispute that the objectors are in legal possession
of the suit land since 2008; their contention is that they are in
legal possession by virtue of an agreement to sell and other
related documents dated 16.09.2008 executed by Pushpa Singh in
their favour; Pushpa Singh had derived her title from Samay
Singh by virtue of documents executed by Samay Singh in favour
of Pushpa Singh on 05.03.1988; objectors have stepped into the
shoes of Pushpa Singh. In these circumstances, the objections
raised by the respondent qua the provisions of Section 102 of the
Code ( rights of the transferee pendente lite) is of little relevance
as the instant suit was filed in 1989 but Pushpa Singh had
allegedly purchased the suit land on 05.01.1988 i.e. prior to the
filing of the present suit; the objectors are claiming their right and
title through Pushpa Singh which is prior in time to the filing of
the present suit. Section 102 would thus have no relevance.
Judgment relied upon by learned counsel for the respondent
reported in 2008 V AD (SC) 201 Usha Sinha Vs. Dina Ram &
others is thus inapplicable.
11. The contention of learned counsel for the respondents that
even assuming that documents had been executed by Pushpa
Singh in favour of the present objector yet Pushpa Singh herself
was only a power of attorney holder of Samay Singh and as such
documents executed by Pushpa Singh in favour of the present
objectors is hit by the provisions of Sections 32 & 33 of the
Registration Act, 1908 and for this proposition reliance has been
placed upon AIR 1987 Madras 239 Sekar Mudaliar Vs. Shajathi Bi
and another. This aspect cannot be gone into at this stage; this
would also require adjudication and a detailed scrutiny.
12. Lastly it has been pointed out that a separate suit bearing
No. 1657/2009 seeking cancellation of sale deed dated 15.07.2003
has been filed by Pushpa Singh and is pending in the Court of
District Judge, Saket; in those proceedings, the present objectors
who were initially arrayed as defendants have been transposed as
plaintiffs; it is pointed out by learned counsel for the respondent
that the objection now raised in this Court can be adjudicated in
those proceedings. This Court is not inclined to agree to this
submission of learned counsel for the respondent. It is the threat
of execution which is pending before the executing court where
the present objectors are at sufferance; that threat cannot be
taken care of in the suit pending in the Saket Court. That apart
learned counsel for the petitioner submits that they would not be
pressing the said suit and in fact would seek permission of the
Court to withdraw the said suit pending in the court of District
Judge, Saket.
13. In view of the aforenoted contentions raised by respective
parties, this appears to be a fit case where the matter should be
remanded to the executing court to enter into a detailed enquiry
and examine the objections of the objector giving him an
opportunity to adduce evidence, if required to prove the alleged
fraud committed by the plaintiff/decree holder in obtaining the ex
parte decree against Samay Singh. The procedure contained in
Order 21 Rules 97 & 98 of the Code read with the ratio of the
judgments in Babu Lal (Supra) and Brahmdeo Chaudhary (Supra)
shall be strictly adhered to.
14. Execution petition is allowed and disposed of in the above
terms. The parties to appear before the District Judge, Saket who
shall make an endevour to dispose of the objections within an
outer limit of six months from the receipt of the order.
INDERMEET KAUR, J.
JULY 05, 2011
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