Delhi High Court
Mohd. Ismile Mullai & Anr. vs Dda & Ors on 13 March, 2018
$~3
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on :- 13th March, 2018
+ C.R.P. 91/2012 & CM Nos. 5539/2015, 17257-59/2015
MOHD. ISMILE MULLAI & ANR. ..... Petitioners
Through: Mr. Gaurav Bhardwaj, Adv.
versus
DDA & ORS ..... Respondents
Through: Mr. Pawan Mathur, Standing
counsel for DDA.
Mr. Varun Goswami, Mr. Sahil
Agarwal & Mr. Rahul Sinha,
Advs. for LRs of R-8.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. This petition under Section 115 of the Code of Civil Procedure,
1908 questions the correctness, legality and propriety of order dated
14.02.2012 passed by the Additional Senior Civil Judge (Central) on
the file of execution case no. 51/10 of 1983 whereby the application of
the petitioners under Section 146 CPC read with Order 21 Rule 16
CPC praying for liberty to take over the execution proceedings from
decree holder Lala Ram Kanwar Gupta was dismissed.
2. The execution proceedings related to the final decree of
partition passed by the Court of Sub Judge, First Class, Delhi in
partition suit bearing no.484/1976 following the preliminary decree
that had been earlier granted on 26.09.1978. A copy of the decree-
sheet dated 27.01.1979 (pages 19-20 of the paper book) would
indicate that Ram Kanwar Gupta was party to the said suit for
partition, he having been impleaded as fourth defendant. The final
decree for partition had allocated portion mark "M" as depicted in the
site plan in his favour. For completion of narration, it may also be
added that a party named Shedu, son of Haider, resident of 1219,
Mohalla Raquab Ganj, Delhi was also a party to the suit as defendant
no.7, but no share was apportioned to him, he statedly being a stranger
who had been impleaded on his own motion.
3. The execution proceedings had been initiated by Ram Kanwar
Gupta in 1982. It is the case of the petitioners that they had purchased
portion "M" falling to the share of the said decree holder Ram Kanwar
Gupta by Sale Deed executed on 05.05.1998, it having been registered
on 08.05.1998.
4. The eighth respondent Mohd. Hanif who had already died
during the proceedings before this Court had filed objection before the
executing court, his prime contention being that he was owner of
property bearing municipal No. 547, Chatta Lal Mian, behind Delight
Cinema, Delhi-06 and that under the cover of the execution of the
partition decree, as aforesaid, effort was being made to oust him from
the said property. He had earlier filed a civil suit (presently registered
as bearing CS SCJ 1222/16) in April, 2010 seeking a decree of
permanent injunction, inter alia, against the petitioners herein from
dispossessing him from the aforesaid property bearing Municipal No.
547, Chatta Lal Mian, behind Delight Cinema, Delhi-06. It appears
that in the course of the proceedings before the first appellate court
(Additional Senior Civil Judge) in the context of the prayer for ad
interim injunction under Order 39 Rule 1 & 2 CPC, it came to be
observed that it was appropriate that the executing court in the case of
partition decree were to adjudicate on the rights of the parties
including the rights of the obstructionist i.e. Mohd. Hanif, if any, in
terms of Order 21 Rule 101 CPC. The eighth respondent Mohd. Hanif
thus approached the executing court and his pleadings before the Civil
Court were treated as objection petition in the execution proceedings.
The said objection petition concededly remained pending and
unaddressed till the impugned order was passed.
5. It is against the above backdrop that the application, as
aforesaid, was moved by the petitioners herein seeking liberty to take
over the execution proceedings from Ram Kanwar Gupta with
reference to the sale deed dated 05.05.1998 registered on 08.05.1998.
6. While these proceedings have been pending before this Court,
Mohd. Hanif died and in that context four applications have come to
be filed, they being CM Nos. 5539/15 (under Order 22 Rule 4 CPC),
17257/15 (for cononation of delay), 17258/15 (under Order 22 Rule 9
CPC) and 17259/15 (for condonation of delay). The counsel
representing the legal heirs of eighth respondent submitted no
objection to the said applications being allowed and the legal heirs to
be substituted, for facilitating the disposal of the petition at hand
though reserving his contentions qua the locus of the petitioners in the
execution matter to be agitated separately. The applications, thus,
stand allowed, and the legal heirs of eighth respondent (since
deceased) are brought on record of the present petition.
7. During the hearing before this Court, it was pointed out by the
counsel representing the legal heirs of eighth respondent that the ninth
respondent has also passed away. His knowledge about the death of
the said party (decree holder) arises out of the proceedings recorded
before the Civil Judge on 08.01.2018 in the civil suit of the eighth
respondent (CS SCJ No. 1222/16) where besides the said Ram
Kanwar, the petitioners are also party defendants.
8. After some hearing, the learned counsel for the eighth
respondent, who only has been contesting the present petition before
this Court, fairly conceded that the application of the petitioners
seeking to take over the execution proceedings from Ram Kanwar,
invoking the provision contained in Section 146 read with Order 21
Rule 16 could not have been adjudicated upon without notice being
issued to Ram Kanwar Gupta, the decree holder.
9. In the opinion of this Court, omission on the part of the
executing court to issue notice to the decree holder vitiates the
proceedings and the order dated 14.02.2012. The impugned order,
thus, must be set aside. Ordered accordingly.
10. It is a natural corollary of the above result of the petition at hand
that the objection petition of the eighth respondent also stands revived
on the file of the executing court which will have to be decided in
accordance with law by appropriate proceedings.
11. While the objection petition of the eighth respondent is to be
considered by the executing court, it will also be duty bound to decide
on the application of the petitioners under Section 146 CPC read with
Order 21 Rule 16 CPC, after notice to the legal representatives of Ram
Kanwar Gupta (the decree holder), for which suitable steps will have
to be taken by the petitioners.
12. Needless to add, the eighth respondent being the objector who
was already present before the executing court when the application,
as aforesaid, of the petitioners came to be filed will also be entitled to
be heard and his objections, if any, in law, suitably dealt, considered
and adjudicated upon. Needless to add, the executing court while
deciding the application will approach the matter uninfluenced by the
view taken in the impugned order.
13. The parties are directed to appear before the executing court on
9th April, 2018.
14. The petition and the pending applications are disposed of in
above terms.
R.K.GAUBA, J.
MARCH 13, 2018
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