Shri Dharam Singh vs Shri Sandeep & Ors.
2014 Latest Caselaw 5242 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         Ex.F.A.No. 30/2014

%                                                     17th October, 2014

SHRI DHARAM SINGH                                           ......Appellant
                          Through:       None.


                          VERSUS

SHRI SANDEEP & ORS.                                        ...... Respondents
                  Through:               Mr. R.S. Sahni, Advocate for
                                         respondent No.2.

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

Caveat No.921/2014

1.            Counsel appears for the caveator and thus the caveat stands

discharged.

C.M. No.17304/2014 (exemption)

2.            Exemption allowed subject to just exceptions.

              C.M. stands disposed of.

+ Ex.F.A. No.30/2014 and C.M. No.17305/2014 (stay)

3.            At the first call, pass over was granted making it clear that on

Ex.F.A.No. 30/2014                                                            Page 1 of 3
 the second call, no further accommodation will be granted. In spite of this,

no one appears for the appellant.

4.           This execution first appeal is filed against the impugned

judgment of the executing court dated 9.10.2014 which has allowed

objections filed by respondent no.2, estranged estranged wife of the

respondent no.1, observing that the consent decree which was taken by the

appellant/plaintiff/plaintiff was only against the respondent no.1/defendant

no.1/son and to which consent decree the objector/defendant no.2/daughter-

in-law of the plaintiff/wife of the respondent no.1 was not a party. Trial

court also observed that a decree cannot be executed against a defendant

against whom case is not proved and since consent decree was obtained only

between the appellant/plaintiff/father and the respondent no.1/defendant

no.1/son, in execution of the same, the respondent no.2/objector could not

have been dispossessed.

5.           It is trite that a decree is only binding against parties to the

decree i.e if there are more than one defendant and a consent decree is

obtained against one defendant, that decree cannot be executed against the

other defendant, because, that will amount to playing fraud against the

defendant no.2, inasmuch as possession will be taken from the defendant

no.2/respondent no.2 in execution of a decree which is not passed against
Ex.F.A.No. 30/2014                                                       Page 2 of 3
 her. Execution of a decree in such a case will also be an endeavour to

overreach the process of the court. Respondent no.2 was admittedly not a

party to the consent decree dated 16.4.2014 (consent statement recorded on

18.3.2013). I may also note that the executing court records that respondent

no.2 was in possession of the suit property and she was thrown out only on

account of execution of a consent decree i.e the objector/respondent no.2

was in possession and possession has been obtained from respondent

no.2/defendant no.2 although only in execution of the decree and although

there was no decree against the respondent no.2/defendant no.2.

6.           Dismissed.




OCTOBER 17, 2014                            VALMIKI J. MEHTA, J.

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