Sh. Ashok Yadav vs Smt. Mary Karuna Pushpa Terasa ...
2014 Latest Caselaw 2253 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+           RFA 168/2014 and CM APPL. 7775-7777/2014

                                                  Decided on 05.05.2014
IN THE MATTER OF :
SH. ASHOK YADAV                                          ..... Appellant
                       Through: Mr. Ravi Gupta, Senior Advocate with
                       Mr. Swastik Singh and Mr. Ajay Gulati, Advocates
                       with appellant in person.

                 versus


SMT. MARY KARUNA PUSHPA TERASA TOPPO & ANR        ..... Respondents
                   Through: Mr. S.P. Sharma, Advocate for R-1.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. The appellant (objector in Execution Petition No.126/2013) has filed

the present appeal against the order dated 11.04.2014, passed by the

Execution Court, whereunder his objections filed under Order XXI Rules

26, 58 and 99 read with Section 151 CPC, have been dismissed.

2. By the impugned order, the Executing Court has rejected the

objection petition filed by the appellant/objector, who claims that he is

the owner and in occupation of the premises No.RZ-26-P/66 on land

measuring 200 square yards comprising in Khasra No.690/308, Indira

Park, Palam Colony situated in village Nasirpur, New Delhi, and is facing

imminent threat of forcible eviction by the respondent No.1/Decree

Holder, who is seeking execution of a judgment and decree dated

27.09.2013 passed in Suit No.279/2012 instituted by her against her son,

Lalit Toppo(respondent No.2/Judgment Debtor) for possession of House

No.RZ-26-P/628, Gali No.41, Mangal Bazar, near Post Office, Indira Park,

Palam Colony, New Delhi, measuring 200 square yards, comprised in

Khasra No.628, village Nasirpur, New Delhi.

3. Mr. Ravi Gupta, Senior Advocate appearing for the appellant

submits that the respondent No.1/Decree Holder is trying to create some

confusion as to the identity of the suit premises to the detriment of the

appellant, who is apprehensive that the bailiff may end up taking over

possession of his premises on the basis of mis-representations being

made by the Decree Holder before the executing court that the suit

property, and the property occupied by the appellant are one and the

same which is not the correct position.

4. It is worth while to note that the appellant had purchased premises

No.RZ-26-p/66 from Lalit Toppo(respondent No.2) through a set of

documents executed on 10.9.2012. Learned counsel for the appellant

claims that his client has no concern with the suit property, and instead of

addressing the aforesaid aspect, in the impugned order, the trial court

has gone into the issue of title of the appellant's property and wrongly

concluded that he is a pawn in the hands of the respondent

No.2/Judgment Debtor. He argues that the appellant has no problem if

the warrants of possession are issued and executed in respect of the suit

property in satisfaction of the judgment and decree dated 27.09.2013,

but the specification and description of the suit property should be such

that it can be correctly identified by the bailiff.

5. Learned counsel for the appellant has been requested to point out

the site plan of the appellant's property as filed by him alongwith his

objections in the execution proceedings for the Court to verify the exact

location of his property. He, however, states on instructions that the site

plan was never filed with the objections. Instead, he contends that the

bounding of the appellant's property is entirely different from the

bounding of the suit property. As per the information culled out from the

sale documents filed by the appellant on record (Annexure-A), the

bounding of the appellant's property is as below:-

      (a)    North :      Other's plot

      (b)    South :      20 Feet Road

      (c)    West:        Gali 8 Feet

      (d)    East:        Other's plot

6. Counsel for the appellant states on instructions from his client that

the details of the plots situated on the North and on the East of the

appellant's plot are as under:-

 Direction      Name of Owner               Plot No.          Plot Size

North          Mr. Rawat                   RZ-26-P/66-A      50 sq. yards

East           Mr. Sharma running a               -          100 sq. Yards
               General Merchant Shop

7. In the course of arguments, counsel for the appellant hands over a

copy of the site plan of the suit property as filed by the respondent

No.1/Decree Holder in the execution proceedings, which is confirmed by

the other side as being the correct document. The same is taken on

record.

8. As against the bounding of the appellant's plot mentioned above,

the bounding of the suit property, subject matter of the execution

petition, is as below:-

       (a)   North:       Other's plot

       (b)   South :      Other's plot

       (c)   West:        Gali 15 Feet

       (d)   East:        Gali 15 Feet




9.     Counsel   for   the   respondent   No.1/Decree    Holder   states    on

instructions from his client that the details of the plots situated on the

North and on the South of the suit premises bearing No.RZ-26-P/628 are

as under:-

 Direction   Name of Owner                Plot No.       Plot Size

North       Mr. Rajinder Prasad Khendi   RZ-26-P/66A    50 sq. yards

South       Mr. Bablu Chodhary            RZ-26-P/63    220 sq. yards

10. It is the stand of the appellant that his property is situated in

Khasra No.690/308, Indira Park, Palam Colony, whereas the suit property

in respect whereof the respondent No.1/decree holder is seeking

execution is situated in Khasra No.628, Indira Park, Palam Colony. In

other words, even the Khasra numbers of the two properties are different.

11. All the aforesaid submissions are a pointer in a single direction,

which is that the appellant has proceeded to file objections in the

execution petition in anticipation of some adverse action that he

apprehends may be taken by the respondent No.1/Decree Holder while

seeking execution of the judgment and decree dated 27.09.2013, without

any coercive steps having been actually taken against his property in the

said proceedings.

12. Counsel for the respondent No.1/Decree Holder states that the

appellant/objector has been attempting to confuse the Executing Court by

wrongly mentioning the number of the suit property as property No.RZ-

26-P/66, whereas the correct Number is RZ-26-P/628. He, however, does

not dispute the fact that even as per the photocopies of the documents

filed by the appellant/objector alongwith his objections, the bounding of

his property described as "premises No.RZ-26-P/66" are entirely different

from the boundings of the suit premises and even the Khasra Nos., where

the suit premises and the premises of the appellant/objector are situated,

are entirely different. In such circumstances, it is not understood as to

how can any confusion arise as to the exact location of the suit premises,

and even if a deliberate attempt is being made to create confusion as

alleged by the appellant, why can that not be satisfactorily addressed in

the execution proceedings.

13. On a query posed to the learned counsel for the appellant as to

whether the appellant had undertaken due diligence before filing the

objections in the execution proceedings by first verifying the exact

specifications of the suit premises, subject matter of the execution

proceedings, the appellant, who is present in Court and happens to be an

advocate by profession, states that he did not take any such steps. Nor

did he verify as to what are the exact boundings of the suit premises as

are necessarily required to be mentioned by the respondent No.1/Decree

Holder in the schedule that is supposed to be attached to the execution

petition.

14. Before dealing with the submissions about confusion of the identity

of the suit premises, as urged by learned counsel for the

appellant/objector, it is necessary to examine the relevant provisions of

the CPC. Order XXI CPC that deals with the provisions relating to

execution of decrees and orders, right from the mode of payment of

moneys under a decree, to the manner in which the execution petition in

respect of an immovable property, that forms part of a decree, has to be

proceeded with.

15. Order XXI Rule 10 CPC stipulates that where the holder of a decree

desires to execute it, he shall apply to the Court that passes the decree.

Under Rule 11, apart from the exception carved out in sub-rule (1), every

application for execution of a decree has to be in writing, signed and

verified by the applicant to the satisfaction of the concerned Court. The

said application is required to be typed in a tabulated form and is required

to contain the following material particulars:-

"(a) the number of the suit;

      (b)    the names of the parties;

      (c)    the date of the decree;

      (d)    whether any, appeal has been preferred from the decree;

      (e)    whether any, and (if any) what, payment or other adjustment

of the matter in controversy has been made between the parties subsequently to the decree;

(f) whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results;

(g) the amount with interest (if any) due upon the decree, or other relief granted thereby, together the particulars of any cross-decree, whether passed before or after the date of the decree sought to be executed;

(h) the amount of the costs (if any awarded);

(i) the name of the person against whom execution of the decree is sought; and

(j) the mode in which the assistance of the Court is required whether -

(i) by the delivery of any property specifically decreed;

(ii) by the attachment, or by the attachment and sale, or by the sale without attachment, of any property;

(iii) by the arrest and detention in prison of any person;

            (iv)    by the appointment of a receiver;

            (v)     otherwise, as the nature of the relief granted may
                    require."

16. Appendix E at the end of the Code contains the standard formats of

various petitions, applications forms etc., including the format of an

application for execution of a decree under Order XXI Rule 11 CPC. The

standard form mentions that where attachment and sale of an immovable

property is sought, the description and specification of the property is

necessary, as for example in the following manner:-

"Description and specification of property

The undivided one-third share of the judgment-debtor in a house situated in the village of ............ value Rs.40, and bounded as follows:-

East by G's house; West by H's house; South by public road; North by private lane and J's house.

I........... declare that what is stated in the above description is true to the best of my knowledge and belief, and so far as I have been able to ascertain the interest of the defendant in the property therein specified.

Signed.............. decree-holder"

17. Order XXI Rule 35 that deals with a decree for immovable property

prescribes as below:-

"35. Decree for immovable property - (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.

(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree.

(3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the court, through its officers, may, after giving reasonable warning and facility to any woman nor appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession."

18. Form No.11 in Appendix E suggests the following format for

issuance of warrant to the Bailiff for giving possession of land etc. under

Order XXI Rule 35 CPC:-

"Form No.11

WARRANT TO THE BAILIFF TO GIVE POSSESSION OF LAND, ETC.

(O. XXI, r. 35) (Title) To The Bailiff of the Court,

WHEREAS the undermentioned property in the occupancy of ............. has been decree to ................. the plaintiff in this suit; You are hereby directed to put the said ............. in possession of the same, and you are hereby authorized to remove any person bound by the decree who may refuse to vacate the same.

GIVEN under my hand and the seal of the Court, this ......... day of ..........19...../20.....

Schedule Judge"

19. Order XXI Rule 54 that mandates attachment of immovable

property, states as below:-

"54. Attachment of immovable property:- (1) Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.

(1A) The order shall also require the judgment-debtor to attend Court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale.

(2) The order shall be proclaimed at some place or on adjacent to such property by beat of drum or other customary mode, and a

copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house, and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate [and, where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over the village.]"

20. Form No.24 that is a part of Appendix E deals with attachment in

execution and states as below:-

"Form No.24 ATTACHMENT IN EXECUTION PROHIBITORY ORDER, WHERE THE PROPERTY CONSISTS OF IMMOVABLE PROPERTY (O.XXI, r. 54) (Title) To ................................................ Defendant

WHEREAS you have failed to satisfy a decree passed against you on the ................ day of ................ 19....../20..... in Suit No. ............. of 19......./20..... in favour of .............. for Rs....................; It is ordered that you, the said ..................... be, and you are hereby prohibited and restrained, until the further order of this Court, from transferring or charging the property specified in the schedule hereunto annexed, by sale, gift or otherwise, and that all persons be, and that they are hereby, prohibited from receiving the same by purchase, gift or otherwise.

[It is also ordered that you should attend the Court on the ............. day of ............19...../20......, to take notice of the date fixed for settling the terms of the proclamation of sale.]

GIVEN under my hand and the seal of the Court, this ............ day of .......... 19..../20......

Schedule

Judge"

21. All the aforesaid provisions under Order XXI, along with the relevant

forms set out under Appendix E of the Code have been prescribed only to

ensure that when an execution petition for attachment of an immovable

property, subject matter of a decree, is filed, or at the stage when an

application for execution of a decree under Rule 11 CPC, is submitted or

at the stage when an application for attachment of an immovable

property is filed under Rule 35 CPC and yet again, at the stage when an

immovable property is attached under Rule 54 CPC, accurate details of

the bounding of the property, subject matter of the decree, are available

on record and all necessary precautions are taken to avoid any ambiguity

or confusion as to the specification of the said immoveable property.

22. In the present case also, when the respondent/Decree Holder is

under a mandate to furnish a schedule of the suit property, subject

matter of the execution petition and as per the said schedule, the

bounding of the suit property is found to be entirely different from that of

the appellant's property so much so that even the Khasra Number in

which the suit property is situated is different, it is not understood as to

how and why is the appellant harbouring an anxiety about some likelihood

of his property being attached in execution of the judgment and decree

dated 27.09.2013 passed in Suit No.279/2012, instituted by the

respondent/Decree Holder against her son, respondent No.2/Judgment

Debtor, particularly, when he says he has no connection with the suit

property. Even otherwise, the objection application of the appellant

appears to be premature when admittedly, no steps have been taken by

the Execution Court till date to issue warrants of attachment in respect of

the suit premises, for the appellant to show anxiety that his property is

likely to be attached.

23. In the aforesaid circumstances, this Court is of the opinion that the

objections filed by the appellant/objector are not only misconceived, but

also premature.

24. At this stage, learned counsel for the appellant states on

instructions from his client that the present appeal may be disposed of

and in the event the Bailiff appointed by the Executing Court for

attachment of the suit premises, subject matter of the judgment and

decree dated 27.9.2013 seeks to dispossess the appellant from his

property bearing No.RZ-26-P/66 situated in Khasra No.690/308, Indira

Park, Palam Colony, in village Nasirpur, then he may be given liberty to

seek his remedies in accordance with law.

25. In view of the aforesaid submission, while declining to interfere in

the impugned order on merits, leave, as prayed for, is granted. The

appeal is disposed of by clarifying that in the event the appellant files any

objections in the Execution Petition filed by the respondent No.1/Decree

Holder against the respondent No.2/Judgment Debtor wherein he disputes

the specification/description of the suit premises sought to be attached, in

satisfaction of the judgment and decree dated 27.9.2013, on the ground

that the said specifications/description match with the

specifications/description of his property, then the same shall be

considered and disposed of by the executing court, in accordance with

law.

                                                           (HIMA KOHLI)
MAY 5, 2014                                                   JUDGE
rkb/sk