Mrs Neetu Saini vs Shri Ram Singh (Since Deceased) & ...
2013 Latest Caselaw 5869 Del

*                    HIGH COURT OF DELHI AT NEW DELHI


+                      EX.F.A. 24/2013 and CM Nos.14414/2013

                                         Date of Decision: 19.12.2013

       MRS NEETU SAINI                                     ..... Appellant

                            Through:   Mr.I.S.Alag and Mr.J.S.Lamba,
                                       Advocate.
                            versus

       SHRI RAM SINGH (SINCE DECEASED) & ORS..... Respondent

                            Through:   Mrs.Rakhi Ray, Mr.S.S.Ray and
                                       Mr.Vaibhav Gulia, Advocates.


CORAM:
HON'BLE MR. JUSTICE V.K. SHALI


V.K. SHALI, J. (ORAL)

1. This is an execution first appeal against the order dated 06.08.2013

by virtue of which the application under Order 21 Rule 101 CPC filed by

the present appellant has been dismissed by the executing court holding

that the appellant has stepped into the shoes of her mother and she has no

independent right, title or interest to the property in question warranting

holding of an inquiry in terms of Order 21 Rule 101 CPC.

2. The learned counsel for the appellant has submitted that the order

which has been passed by the learned executing court is not sustainable in

the eyes of law inasmuch as the question as to whether the appellant has

any right title or interest in the property could not have been decided or

rather rejected by the learned executing court at the threshold without

permitting the appellant to adduce the evidence. He has further stated

that till the time the right of the appellant is not adjudicated formally by

recording of evidence, dis-possession of the appellant from the suit

property ought to have been stayed.

3. It has also been contended by the learned counsel for the appellant

that the original decree holder late Sh.Ram Singh who happens to be the

grandfather of the present appellant and the father of Respondent No.1/1

(Col.Jatinder Pal Singh) herein had died on 24.11.2012. By virtue of his

death the appellant being the grand daughter (daughter of Mr.R.D.Singh,

a pre deceased son of Ram Singh) she was entitled to a right of

inheritance in the suit property and, therefore, she has a right title and

interest in the property of which she could not be divested. The learned

counsel for the appellant has, in order to support his contention, has

placed reliance on two judgments of the apex court in Anwarbi v. Pramod

D.A.Joshi & Ors.; (2000) 10 SCC 405 and N.S.S.Narayana Sarma and

Ors. M/s.Goldstone Exports (P) Ltd. and Ors.; AIR 2002 SC 251 to

contend that the possession of the appellant in respect of the suit property

deserves to be protected till the time the right of the appellant in respect

of the suit property is formally adjudicated after recording of the

evidence.

4. The learned counsel for the respondent has vehemently contested

the submissions made by the learned counsel for the appellant and

contended that this is only a ploy to prolong the execution and ensure that

the fruits of the decree which was passed in favour of late Sh.Ram Singh,

the original decree holder and had been assigned in favour of the present

Respondent No.1/1 (Col.Jatinder Pal Singh) are not enjoyed by the said

respondent.

5. It has also been contended by the learned counsel for the

respondents that there has been a long drawn legal battle between the

original decree holder late Sh.Ram Singh and Ms.Kirpal Kaur, the mother

of the present appellant herein, which has gone right up to the Supreme

Court. The present appellant who is living in the same property along

with the mother and was aware of the proceedings and despite this, she

has made a false averment in the application under Order 21 Rule 101

CPC that she learnt about the decree having been passed on 22.05.2013

and accordingly chose to file an application. This fact has been contested

by the learned counsel for the appellant.

6. Before dealing with the submissions advanced by the learned

counsel for the appellant, it would be necessary to give a brief

background of the case. Late Sh.Ram Singh was the original decree

holder. He was the grand father of the present appellant. He had filed a

suit for possession against Respondent No.2/Mrs.Kirpal Kaur, who is the

mother of the present appellant. The husband of Respondent

No.2/Mrs.Kirpal Kaur, late Sh.R.D.Singh, who happened to be the son of

late Sh.Ram Singh had pre-deceased him in the year 2001. This suit for

possession had been decreed on 18.11.2004 in favour of late Sh.Ram

Singh and against Respondent No.2/Mrs.Kirpal Kaur. However, before

the said suit being decreed, Respondent No.2/Mrs.Kirpal Kaur had filed a

suit for partition of the suit property bearing no. CS(OS) No.2172/2003 in

the High Court of Delhi against late Sh.Ram Singh. Against the

judgment and decree dated 18.11.2004, Respondent No.2/Mrs.Kirpal

Kaur had filed RFA No.630/2004 before the Hon'ble High Court. The

said appeal came up for hearing before a Division Bench of this court on

02.06.2006 and on that particular date, a settlement was recorded between

the late Sh.Ram Singh herein and Mrs.Kirpal Kaur/R-2 herein to the

effect that Mrs.Kirpal Kaur would not alienate or hand over the property

in her possession i.e. Second Floor of suit property bearing no.45, Sant

Nagar, East of Kailash, New Delhi to anybody till the final decision of

the suit for partition filed by her being CS(OS) 2172/2003. It was also

agreed in that consent order that in the event of CS(OS) 2172/2003 being

dismissed, the possession of the suit property shall be handed over to the

decree holder late Sh.Ram Singh or his nominee by Mrs.Kirpal Kaur/R-2.

On 03.05.2007, the decree holder late Sh.Ram Singh nominated his son

Respondent No.1/1 (Col.Jatinder Pal Singh), another son, as his nominee

to whom the possession could be delivered in pursuance to the consent

decree. On 21.01.2011, CS(OS) 2172/2003 was dismissed by the learned

single Judge of the High Court and thus the suit for partition was decided

against R-2 herein/Mrs.Kirpal Kaur. Late Sh.Ram Singh, prior to decision

of CS(OS) 2172/2003 i.e. the suit for partition filed by Respondent

No.2/Mrs.Kirpal Kaur, had filed an execution application which was

adjourned sine die. Respondent No.2/Mrs.Kirpal Kaur filed a RFA

No.41/2011 against the judgment and decree of the learned Single Judge

of the High Court dismissing the suit for partition. The said appeal was

also dismissed on 31.10.2012 by the Division Bench. On 08.11.2012 late

Ram Singh filed an application seeking revival of his execution

application which had been adjourned sine die on account of the

pendency of the partition suit. Against the order dated 31.10.2012,

Respondent No.2/Mrs.Kirpal Kaur filed a special leave petition in

August, 2013 along with an application seeking condonation of delay

which is still pending adjudication before the apex court. It has been

pointed out that although along with the SLP an application for stay of

the execution proceedings was filed, however, that was rejected. In the

meantime on 24.11.2012, late Sh.Ram Singh expired and his nominee R-

1/1 Sh.J.P.Singh filed an application on 30.01.2013 for substitution of his

nominee in place of the decree holder which factum was recorded in the

Division Bench order of the court which had passed a consent decree in

favour of late Sh.Ram Singh and against R-2/Smt.Kirpal Kaur.

7. It has been stated by the learned counsel for the appellant that the

said application dated 03.01.2013 remains undecided while as the learned

counsel for the respondent has pointed out by referring to page 327 of the

paper book that a separate application under Section 151 CPC was filed

before the executing court for deciding the application under Order 21

Rule 35 CPC for substituting the name of Respondent No.1/1

(Col.Jatinder Pal Singh) on account of the death of the death of late

Sh.Ram Singh/decree holder. This application was considered by a

Division Bench of this court on 01.07.2013 and the same was allowed

with the observation that a Division Bench of this court on 03.05.2007

had already passed an order that the possession has to be handed over to

late Sh.Ram Singh or his son Respondent No.1/1 (Col.Jatinder Pal

Singh). Sh.Ram Singh having expired, therefore, the only inference

which could be drawn was that the possession in terms of the decree and

in terms of the Division Bench order had to be given to Respondent

No.1/1 (Col.Jatinder Pal Singh). It has also been pointed out that this

order dated 01.07.2013 passed by the learned ADJ was challenged by R-

2/Smt.Kirpal Kaur in CM(M) No.750/2013 wherein a single Judge of this

court dismissed the said petition by observing that the name of

Respondent No.1/1 (Col.Jatinder Pal Singh) has already been substituted

as a nominee by the Division Bench for the purpose of taking possession.

8. On 31.02.2013, Respondent No.1/1 (Col.Jatinder Pal Singh) filed

an application under Section 151 CPC for issuance of warrants. It was at

this stage that the present appellant filed an application under Order 21

Rule 35 CPC stating that she has an independent right, title or interest in

the property being the granddaughter of late Sh.Ram Singh and,

therefore, she could not be dispossessed. The claim of the appellant has

been dismissed by the executing court by holding that the appellant has

entered into the shoes of her mother and she cannot raise a separate claim

with regard to the suit property, and, therefore, the application has been

dismissed.

9. Feeling aggrieved by the said order, the present appeal has been

filed and the submissions which have been urged by the learned counsel

for the appellant is essentially that she has an independent right of

inheritance being the granddaughter of Late Sh.Ram Singh and therefore

she could not be dispossessed. The learned counsel for the appellant has

also placed reliance on two judgments of the Apex Court in Anwarbi v.

Pramod D.A.Joshi & Ors.; (2000) 10 SCC 405 and N.S.S.Narayana

Sarma and Ors. M/s.Goldstone Exports (P) Ltd. and Ors.; AIR 2002 SC

251.

10. A perusal of the aforesaid facts would clearly show that certain

facts are not in dispute and the same are that the suit for possession was

initiated by late Sh.Ram Singh, father in law of Respondent No.2

herein/Smt.Kirpal Kaur, which was decreed on 18.11.2004. Before the

said decree was passed, the mother of the present appellant, who is

Respondent No.2 herein, filed a suit for partition claiming 1/5th share in

the suit property, when Mrs.Kirpal Kaur/Respondent No.2, mother of the

appellant, had filed the suit for partition, her husband Late Sh.R.D.Singh

had already expired, therefore, even though the suit was filed by her

individually, but it is deemed to have other two legal heirs of late

Sh.R.D.Singh namely their two daughters, one of whom is the present

appellant. An appeal was filed by Respondent No.2/Smt.Kirpal Kaur

against the decree of possession passed on the basis of the suit of late

Sh.Ram Singh before a Division Bench of this court where the court had

recorded the compromise and disposed of the said appeal in terms of the

said compromise. The terms and conditions of the compromise were that

Respondent No.2/Smt.Kirpal Kaur had accepted the decree which was

passed by the trial court against her but the possession of the suit

premises could not be retrieved by the decree holder late Sh.Ram Singh

till the time the suit for partition which was filed by Respondent

No.2/Smt.Kirpal Kaur was decided. It was also agreed between the

parties that in case the suit for partition was decided in favour of

Respondent No.2 herein/Smt.Kirpal Kaur, the decree could not have been

executed against her. But unfortunately, the suit for partition was

dismissed against Respondent No.2/Smt.Kirpal Kaur. In the appeal filed

by Respondent No.2/Smt.Kirpal Kaur against the judgment and decree

dated 18.11.2004, it was recorded by the Division Bench with the consent

of the judgment debtor that she will hand over the possession of the suit

property to the decree holder or his nominee in the event of her failure in

the suit for partition. Having suffered an adverse order in the suit for

partition, it was not open to Respondent No.2/Smt.Kirpal Kaur or for that

matter her daughters, one of whom is the present appellant, to contend

that she would not hand over the possession of the suit property to late

Sh.Ram Singh or his nominee. Respondent No.2/Smt.Kirpal Kaur has

already preferred a special leave petition in the apex court along with an

application seeking condonation of delay against the judgment of the

Division Bench dated 31.10.2012 which is still pending but notably in the

said SLP, although notice has been issued to the respondents, no stay has

been granted against the execution of the decree. As a matter of fact, it

has been pointed out by the learned counsel for the respondents that the

prayer for stay has been specifically rejected by the apex court vide order

dated 16.09.2013. It is in these circumstances that the present appellant

who happens to be the daughter of Respondent No.2/Smt.Kirpal Kaur has

filed an application seeking to urge her independent right, title and

interest in the suit property on account of the unfortunate death of the

decree holder late Sh.Ram Singh. First of all, I feel that on account of the

death of late Sh.Ram Singh on 24.09.2012, the appellant would not have

an occasion to urge her independent right, title or interest in the suit

property for the simple reason that her mother Respondent

No.2/Smt.Kirpal Kaur had chosen to file a suit for partition way back in

2003 when she was facing a suit for possession filed by her father in law,

late Sh.Ram Singh. When the suit for partition was filed by Respondent

No.2/Smt.Kirpal Kaur, her husband Sh.R.D.Singh, had unfortunately died

much prior to that. The plea of mother of the appellant that the suit

property was an ancestral property and therefore she was having 1/5th

share having been rejected by the trial court, would bind not only the

mother of the appellant Respondent No.2/Smt.Kirpal Kaur herein but also

all the other legal heirs of late Sh.R.D.Singh, who was father of the

present appellant. Merely because the decree holder has died in 2012,

would not give rise to an independent right to the appellant and the trial

court has rightly held that she has stepped into the shoes of her mother

and tried to agitate an issue which stands concluded by a prolonged

litigation between the parties namely R-2/Smt.Kirpal Kaur and her father

in law late Sh.Ram Singh.

11. So far as the question of Respondent No.1/1 (Col.Jatinder Pal

Singh) being the nominee and in that capacity being a trustee is

concerned, the appellant has availed of a remedy by filing an independent

suit before the appropriate forum by urging her right, which will be

decided by the court concerned but so far as her setting up an independent

right in the instant case is concerned, if this permitted to be done, it will

only result in grossest abuse of the processes of law because as late as in

2006, the mother of the appellant had consented to hand over the

possession of the suit property to the decree holder or his nominee in the

event of her losing the partition suit and moreover the partition suit has

been dismissed, the appeal challenging the said dismissal has also been

dismissed and the special leave petition having been filed, the stay has

also been specifically rejected by the apex court. In such a contingency,

to entertain the objections of the present appellant would only amount to

putting premium on the dishonest conduct of a party who is admittedly

and apparently acting in tandem with her mother.

12. So far as the judgments relied upon by the learned counsel for the

appellant are concerned, in Anwarbi v. Pramod D.A.Joshi & Ors.; (2000)

10 SCC 405, the Supreme Court has observed that the person who has

filed a petition under Order 21 Rule 35 CPC is entitled to retain the

possession of the suit premises till the time his objections are decided, is

not applicable to the facts of the present case because in the said case,

there was no such application where the relative of the appellant before

the apex court had consented to hand over the possession of the suit

premises in pursuance to the decree having been suffered by him in a

competent court while as in the instant case, not only the mother of the

present appellant had suffered an adverse decree in the suit for possession

filed by her father in law but had also made that decree subject to the suit

for partition which was admittedly decided against her. Therefore, the

facts of that reported case are distinguishable.

13. So far as the second judgment in N.S.S.Narayana Sarma and Ors.

M/s.Goldstone Exports (P) Ltd. and Ors.; AIR 2002 SC 251 is concerned,

it only deals with the interpretation of Order 21 Rule 101 CPC and the

connected rules 97 to 99. It does not lay down as a matter of course that

wherever a person claims an independent right title or interest in the suit

property in such a situation invariably in every case, the evidence is to be

recorded. Rather, there is a judgment of the Apex Court in Silverline

Forum Pvt.Ltd. v. Rajiv Trust and Anr. (1998) 3 SCC 723 where it has

been observed that the adjudications of the objections filed by a party

obstructing the execution of the decree need not be necessarily based on a

detailed inquiry or on the basis of evidence. It is only in a case where the

court deems it necessary that the court may permit such a party to adduce

evidence.

14. I feel that the proposition of law laid down in Silverline Forum's

case (supra) squarely fits in the facts of the present case. In the instant

case, I am of the considered view that the executing court has rightly

dismissed the objections of the present appellant holding that she has

stepped into the shoes of her mother and it is only a ploy to defer the

execution of the decree. In normal circumstances, such an appeal, which

is a gross abuse of the processes of court & law should have been

dismissed with imposition of heavy cost, however, keeping in view the

fact that the appellant is a lady who is admittedly living with her mother

and is stated to be having matrimonial discord, I refrain from do so.

15. Dismissed.

V.K. SHALI, J.

December 19, 2013 dm