Vijay Kumar Aggarwal @ Gupta vs Km. Anupama
2012 Latest Caselaw 5189 Del

*         THE HIGH COURT OF DELHI AT NEW DELHI

+                CM(M) 974/2012 CM No. 15121-15122/2012

                                        Date of Decision: 31.08.2012

VIJAY KUMAR AGGARWAL @ GUPTA ...... Petitioner
                Through: Mr. Ashish Mohan, Adv.

                               Versus

KM. ANUPAMA                                     ...... Respondent
                          Through:      None.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This petition under Article 227 of the Constitution challenges order dated 24.08.2012 of Additional District Judge (ADJ), Central- 07, Delhi, whereby request of the objector to file objections was declined and Warrants of Possession was ordered to be issued in terms of the judgment and decree dated 03.01.2009 passed in suit No. 321/2004.

2. The respondent Anupama had filed a suit against her father (defendant No. 1) and others including the petitioner (defendant No.

5) for partition, declaration and permanent injunction in respect of plot bearing No. 124, Pocket-11, Sector-22, Rohini Residential Scheme, Delhi claiming herself to be co-allottee with her father, and disputing the documents allegedly executed by her father in respect

of the suit premises with defendant No. 2, 3 and 5. The suit was decreed on 03.01.2009. The documents executed by defendant No. 1 in favour of defendant No. 2, 3 and 5 were cancelled. The petitioner (defendant No. 5) being in possession of the suit premises, was directed to handover the possession to the original allottees within 60 days of the order. Being aggrieved, the petitioner preferred an appeal being Appeal No. 154/2009 before this Court, which came to be dismissed on 09.01.2012. The judgment and decree was also not disturbed by the Supreme Court. The petitioner avoided to give the possession and continued to resist the execution of the decree. An excuse was taken by him that the possession could not be given as the original allottees could not be ascertained. The learned ADJ attempted to record his statement under Order 10 Rule 2 CPC, which he avoided midway.

3. Now he intended to file some objections before the executing Court. The learned ADJ heard the counsel representing him. The objections which were sought to be presented were to the effect that defendant No. 1 had executed a registered Power of Attorney dated 18th August, 2012 in his favour and thereby has authorised him to manage and take care of the suit premises and thus, he is not liable to hand over the possession. This was resisted by the Decree Holder Anupama. The learned ADJ, though, gave full hearing to the counsel appearing for the petitioner/objector (defendant No. 5) and discussed the documents which were sought to be presented vide those objections, but, noted that the intention of the

petitioner/JD(defendant No.5) was to delay and avoid execution on false excuses, and thus, the proceedings could not be stayed.

4. The said order has been assailed by the petitioner/JD in the instant petition. The submissions which have been made before me are the same which were made before the ADJ regarding execution of Power of Attorney dated 18.08.2012. The ADJ has rightly recorded that the petitioner was finding false excuses and was trying to avoid execution on one or the other ground. He knew as to who were the allottees to whim the possession was directed to be given, but, still took the plea that the names of the allottees could not be ascertained for giving possession. He had contested the suit as defendant and was not stranger to the lis or the parties. The said Power of Attorney dated 18.08.2012 is, undisputedly, got executed much after the passing of the decree and service of the notice of execution on the petitioner. This was another invented device of the petitioner to retain possession. In any case, the execution of such a document could not have any effect on the rights of the DH, having accrued to her with the finality of the decree, being hit by the doctrine of lis pendence as per Section 52 of the Transfer of Property Act. Even if the said objections were taken on record, no meaningful and useful purpose would have been served, since the documents already executed by defendant No. 1 had been cancelled by the Court. The petitioner seems to be hell bent in finding dubious methods to deprive the Decree Holder to have the fruits of the decree.

5. I do not see any illegality or infirmity in the impugned order. The petition has no merit and is dismissed.

M.L. MEHTA, J.

AUGUST 31, 2012 awanish