Delhi High Court
Smt. Sumitra Devi & Anr. vs Satpal Gugnani & Ors. on 13 November, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 584/2014 & CM No. 10688/2014 (stay)
% 13th November , 2014
SMT. SUMITRA DEVI & ANR. .....Petitioners
Through: None.
VERSUS
SATPAL GUGNANI & ORS. ...... Respondents
Through: Ms. Preeti Meehan, Adv. for R-1
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This petition impugns the order of the executing court dated
29.5.2014 directing issuance of warrants of possession with respect to the
suit property.
2. Learned counsel for respondent no.1 states that the respondents
have already taken the possession of the suit property in execution of the
decree and are already in possession for about past three months.
3. Learned counsel for respondent no.1 also draws the attention of
this Court to an order dated 17.7.2014 and a judgment dated 21.7.2014
CMM 584/14 Page 1 of 5
passed in connected matters in CM(M) No. 339/2014 and CM(M) No.
682/2014, respectively, showing dismissal of similar type of petitions filed
by same and other persons. This order and the judgment read as under:-
Order dated 17.7.2014 passed in CM(M) 339/2014
"1. No one appears for the petitioners. This case was first listed
on 4.4.2014 when at the request of the counsel petitioners the same was
renotified for today making it clear that there is no stay of the impugned
order.
2. Today no one was present on the first call. No one is present
even on the second call although it is 4.25 PM.
3. This petition under Article 227 of the Constitution of India
impugns the order dated 4.1.2014 by which warrants of possession were
issued in favour of the decree-holder.
4. It may be noted that eviction decree has been confirmed right
till the Supreme Court.
5. Petitioner nos. 1 and 2 claim to be the co-owners who have
sold their rights to petitioner nos. 3 and 4 who are the judgment debtors and
consequently objections are being raised to execution of the decree.
6. The Supreme Court in the case of India Umbrella
Manufacturing Co. and Others Vs.Bhagabandei Agarwalla (Dead) by
Lrs. Smt. Savitri Agarwalla & Ors. 2004(3) SCC 178 has held that rights
with respect to eviction petition are crystallized as on the date of filing of
the petition and subsequent events cannot frustrate the eviction petition and
a co-owner has no right to withdraw the consent which was granted at the
date of filing of the petition.
7. In view of the above, it is clear that the present petition is an
abuse of the process of law, and the same is therefore dismissed."
Judgment dated 21. 7.2014 passed in CM(M) 682/2014
"Caveat No.592/2014
CMM 584/14 Page 2 of 5
1. Counsel appears for the caveator. Caveat stands discharged.
C.M. No.11501/2014 (exemption)
2. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
+ C.M. (M) No.682/2014 and C.M. No.11502/2014 (stay)
3. On 17.7.2014, I have dismissed a petition being C.M
(M) No.339/2014 which was filed by the stated owners of the suit property
to favour the present petitioner/judgment debtor with the following order:-
"1. No one appears for the petitioners. This case was first
listed on 4.4.2014 when at the request of the counsel petitioners the
same was renotified for today making it clear that there is no stay of
the impugned order.
2. Today no one was present on the first call. No one is
present even on the second call although it is 4.25 PM.
3. This petition under Article 227 of the Constitution of India
impugns the order dated 4.1.2014 by which warrants of possession
were issued in favour of the decree-holder.
4. It may be noted that eviction decree has been confirmed
right till the Supreme Court.
5. Petitioner nos. 1 and 2 claim to be the co-owners who have
sold their rights to petitioner nos. 3 and 4 who are the judgment
debtors and consequently objections are being raised to execution of
the decree.
6. The Supreme Court in the case of India Umbrella Manufacturing
Co. & Others Vs.Bhagabandei Agarwalla (Dead) by Lrs. Smt. Savitri
Agarwalla & Ors. 2004(3) SCC 178 has held that rights with respect to
eviction petition are crystallized as on the date of filing of the petition
and subsequent events cannot frustrate the eviction petition and a co-
owner has no right to withdraw the consent which was granted at the date
of filing of the petition.
7. In view of the above, it is clear that the present petition is an
abuse of the process of law, and the same is therefore dismissed."
CMM 584/14 Page 3 of 5
4. The basic grievance of the petitioners/judgment debtors is
that the eviction petition could not proceed because the co-owners/sisters
were not parties to the eviction petition.
5. Besides the fact that it is settled law that a co-owner can file
an eviction petition, this issue was or ought to have been raised in the main
eviction proceedings so that it is decided in the main eviction proceedings,
and which eviction proceedings have attained finality right till the Supreme
Court inasmuch as the eviction petition had been decreed against the
petitioners and confirmed by the dismissal of the SLP of the present
petitioners.
6. The provision of Section 11 of Code of Civil Procedure,
1908(CPC) read with Explanation IV thereof deals with the principle of
constructive res judicata. All aspects which might or ought to have been
urged in the main petition, if not taken as a ground of defence or attack, are
deemed to have been decided in the main proceedings and cannot be raised
by means of objections in the execution proceedings.
7. Order 21 Rule 102 CPC provides that objections cannot be
filed by transferee pendente lite. If objections cannot be filed by persons
who are transferees penente lite, and which is on the principle that a decree
binds the defendant and all persons who claim through the defendant,
surely the defendant in a suit (and a respondent in the eviction proceedings
such as the present petitioner) cannot file objections to execution of the
decree.
8. In view of the above, there is no merit in the petition and the
same is therefore dismissed with costs of Rs.10,000/-. Costs be paid within
four weeks from today."
4. No one appeared for the petitioners on 1.8.2014. No one
appears for the petitioners even today.
5. I have seen the impugned order and I do not find prima facie
any illegality in the same because respondents after much contest right till
CMM 584/14 Page 4 of 5
the Supreme Court got the eviction decree which sought to be frustrated by
the petitioners whose connected petitions have already been dismissed.
6. Since however no one appears for the petitioners this petition is
dismissed in default and for non-prosecution.
7. Let no application for restoration or recall of this order be
entertained by the Registry unless costs of Rs.50,000/- are first paid to the
respondent no.1.
NOVEMBER 13, 2014 VALMIKI J. MEHTA, J.
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