Sh.Sanjay Kochhar vs Smt.Kamlesh Gupta And Ors.
2011 Latest Caselaw 1630 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.391/2001

%                                                 22nd March, 2011

SH.SANJAY KOCHHAR                                 ...... Appellant
                                Through:    Ms. Suman Kapoor, Advocate.


                          VERSUS


SMT.KAMLESH GUPTA AND ORS.                        ...... Respondents
                        Through:            Mr. P.K.Seth, Advocate for
                                            respondents no. 1 and 2
                                            Mr. M.Hussain, Advocate for
                                            LRs of respondents no. 3 and 5.


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    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


VALMIKI J. MEHTA, J (ORAL)

CM No.1127/2001(condonation of delay)

              Since I have otherwise heard the appeal, delay in filing the

appeal is condoned. CM stands disposed of.

RFA No.391/2001

1.            The challenge by means of this Regular First Appeal under

Section 96 of the Code of Civil Procedure, 1908 is to the impugned judgment


RFA No.391/2001                                                      Page 1 of 5
 and decree dated 18.9.1998 whereby the suit of the respondents no. 1 and 2

was decreed for specific performance with respect to the property No.C-12,

Zafrabad Residential Scheme, Shahdara, Delhi and of which the defendant

no.1/Sh.Budhu/respondent no.3 was the owner.

2.          The challenge which is laid to the impugned judgment and

decree is not by the original owner Sh.Budhu/respondent no.3, but is by one

Sh. Sanjay Kochhar, who was in fact not even a party to the suit. The appeal

therefore would not be maintainable under Section 96 CPC because the

appellant was not a party to the suit. This position is no longer res integra

and it has been held by a Division Bench of this Court in the case reported as

Bharat Singh vs. Firm Sheo Pershad Giani Ram & Ors. AIR 1978 Delhi

122 (DB) that a decree or order against a person who is not a party to the

suit, on general principles of law, is not binding on him and therefore such a

person cannot have a legal grievance against the decree or order and hence

cannot apply for a review of the decree or order.        Para 32 of the said

decision is relevant and the same reads as under:-

           "No authority contrary to the view that we have expressed
           above was cited, nor was any authority cited in favour of the
           view that we have expressed. We are, however, fortified in
           taking the view that we have taken on the principle that a
           decree or order adversely affecting a person who is not a
           party to the lis in which that order or decree is passed is in
           law not binding on him. Such a person, therefore, can
           ignore the order or decree which adversely affects him and
           so, cannot apply for a review of that order or decree. He
           may take such other steps as may be available to him in law
           to protect his rights as and when the order or decree
           adversely affecting him is sought to be enforced so as to
           jeopardize his rights."
RFA No.391/2001                                                    Page 2 of 5
  3.         In my opinion, the ratio will equally apply to Section 96 CPC. This

is because only certain judgments, such as judgments in testamentary

jurisdiction; matrimonial jurisdiction and so on operate as judgments in rem

by virtue of Section 41 of the Indian Evidence Act, 1872, and all other

judgments are only judgments inter-parties and therefore operate as

judgment in personem and not judgments in rem. The appellant therefore

does not have any locus standi to challenge the impugned judgment and

decree.

4.          Learned counsel for the appellant sought to argue that the

expression "aggrieved person" in Section 96 must be construed so as to

include persons such as the appellant. I cannot agree in view of the Division

Bench's decision in the case of Bharat Singh (supra).

5.          Another reason why this appeal is liable to be dismissed is that

the present appellant had filed objections in the Execution Petition which was

filed by the respondents no. 1 and 2 for enforcing the impugned judgment

and decree dated 18.9.1998.         The objections of the appellant were

predicated on documents dated 14.6.1993 which were executed in his favour

by the respondent no.3 herein. The said objections were dismissed by the

Trial Court and challenge to the said order has also been dismissed by this

Court vide its order dated 14.1.2011 in Ex.F.A No.34/2005.         One of the

reason for dismissing Ex. F.A. by this Court vide order dated 14.1.2011 is the

lack of any right of the appellant by virtue of Section 48 of the Transfer of

RFA No.391/2001                                                     Page 3 of 5
 Property Act, 1882 as per which the earlier set of documents will prevail over

later set of documents, inasmuch as the documents creating right in favour

of the appellant are admittedly of 1993 and the Agreement to Sell executed

in favour of the respondents 1 & 2 is of 1989.     Counsel for the appellant

relied upon Para 7 of the order dated 14.1.2011 that the issue urged by the

appellant therein, and who was also appellant in the present appeal, was left

open to be decided by this Court. I find that though that is correct because

the learned Single Judge of this Court who decided Ex.F.A No.34/2005 on

14.1.2011 stated that the said decision will be subject to any finding as may

be returned by this Court in the present appeal, however yet the present

appeal is liable to be dismissed because there is no reason to depart from

the rationale of Section 48 of the Transfer of Property Act which has been

applied in Ex.F.A No.34/2005 dated 14.1.2011 because, as stated already,

the documents which are relied upon by the appellant to allege right, title

and interest in his favour are dated 14.6.1993 whereas the agreement to sell

of the respondents no. 1 and 2 is dated 16.11.1989. I am not referring to

other aspects of the invalidity of the documents dated 14.6.1993 (which are

stated to be registered as per the case of the appellant) being the caretaker

agreement, construction agreement and so on as has been observed by the

learned Single Judge while dismissing of Ex.F.A No.34/2005 on 14.1.2011

inasmuch as, in my opinion, it is enough for the purpose of dismissal of the

present appeal that the documents relied upon by the appellant are

subsequent to the documents relied upon by the respondents no. 1 and 2,
RFA No.391/2001                                                    Page 4 of 5
 and whose documents, will take precedence over the documents alleged to

have been executed in favour of the appellant.

6.      Accordingly, I dismiss the appeal as not maintainable and also on

account of the fact that the appellant really cannot have a better claim to the

subject property than the respondents no. 1 and 2 whose agreement to sell

is prior in point of time than the documents which are relied upon by the

appellant. Parties are left to bear their own costs. Trial Court record be sent

back.

CM No.1130/2001(stay)

             No orders are required to be passed in this application as the

main appeal itself is disposed of and thus application also stands disposed

of.

CMs No.1124/01(u/S.151) & 11216/01(u/O.1 R.10)

             These CMs stand disposed of having become infructuous as the

main appeal has been disposed of.




March 22, 2011                                   VALMIKI J. MEHTA, J.

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