Delhi High Court
Raghunath Singh (Deceased) Through Lrs vs Satish Chand And Anothers on 8 January, 2024
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 5 January 2024
Pronounced on: 8 January 2024
+ EX.F.A. 47/2023
RAGHUNATH SINGH (DECEASED) THROUGH LRS
..... Appellant
Through: Mr. Ramesh Kumar Jain, Mr.
Mudit Bansal and Ms. Ayushi Vats, Advs.
versus
SATISH CHAND AND ANOTHERS ..... Respondents
Through: Mr. J.K.Jain, Adv. for R-1
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
J U D G M E NT
%
1. There are four dramatis personae in this appeal. In the order of
their appearance in the story that enfolds, they are Satish Chand
(Respondent 1), Raj Kumar (Respondent 2), Raghunath Singh (the
appellant) and Sukhma Devi (the wife of Raghunath Singh, who
represents him, as Raghunath Singh is no more).
2. CS 327/2014 was instituted by Respondent 1 Satish Chand, as
the plaintiff, against Respondent 2 Raj Kumar, as the defendant, in
respect of property no. 1677-C, Ground Floor, Todarmal Colony,
Prem Nagar, Najafgarh, Delhi-110043 (the suit property) under
Section 61 of the Specific Relief Act 1963.
1 6.
Signature Not Verified Suit by person dispossessed of immovable property. -
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3. Satish Chand contended, in the suit, that the suit property,
which was a shop, had been taken on rent by him from Raghunath
Singh on 1 May 2013 at a monthly rent of ₹ 1700/- excluding
electricity charges. He claimed to have been running a shop in the suit
property under the name and style "M/s Satish Chand Ruee Centre".
According to Satish Chand, Raj Kumar was also a tenant under
Raghunath Singh, but in respect of another shop, which was adjacent
to the suit property. Satish Chand alleged that Raj Kumar was seeking
to take forcible possession of the suit property and had, towards that
end, even registered a false FIR against Satish Chand in PS Najafgarh
on 27 January 2014.
4. Consequent on the registration of the said FIR, Satish Chand
was arrested. In his absence and behind his back, Raj Kumar broke
open the locks on the suit property and misappropriated Satish
Chand's belongings, lying in the suit property, on 27 January 2014.
This came to Satish Chand's notice when he was released on bail on
29 January 2014. Satish Chand also lodged a complaint with the
police authorities against Raj Kumar on 1 February 2014.
5. It is in these circumstances that Satish Chand instituted CS
327/2014 against Raj Kumar, alleging that Raj Kumar had taken
forcible possession of the suit property, by registering the aforenoted
false FIR against Satish Chand in PS Najafgarh on 27 January 2014.
(1) If any person is dispossessed without his consent of immovable property otherwise than
in due course of law, he or any person through whom he has been in possession or any person
Signature Not Verified claiming through him may, by suit, recover possession thereof, notwithstanding any other title that
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As Raj Kumar had allegedly taken forcible possession of the suit
property, Satish Chand sought a decree, dispossessing Raj Kumar
from the suit property and restoring its possession to Satish Chand.
6. Raj Kumar refuted Satish Chand's claim of having been a
tenant in respect of the suit property. Raj Kumar set up a rival claim
of tenancy in respect of the suit property, under Raghunath Singh.
According to Raj Kumar, he had taken two shops on tenancy from
Raghunath Singh, of which the suit property was one. He claimed to
have been running a shop in the suit property under the name and style
of Bengali Sweets. Raj Kumar claimed to have continued as a tenant
in the suit property for over 16 years. Contrary to Satish Chand's
assertions, Raj Kumar contended that, in fact, Satish Chand had
thrown out Raj Kumar from the suit property in the night between 26-
27 January 2014, which was what compelled Raj Kumar to institute an
FIR against Satish Chand.
7. In view of the rival stances adopted by Satish Chand and Raj
Kumar as the adversaries in the suit, the learned ADJ framed the
following questions as arising for consideration, on 1 August 2014:
"1. Whether the plaintiff was in possession of the suit shop of
property bearing No.C-1677, Todarmal Colony, Prem Nagar,
Najafgarh, New Delhi-43 as shown in red colour in the site plan
prior to his dispossession i.e. on 27.01.2014? OPP
2. Whether plaintiff is entitled for a decree of possession in
respect of the suit shop as prayed for in the suit ? OPP
3. Relief."
Signature Not Verified may be set up in such suit.
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8. The learned ADJ proceeded to rule, in respect of the three
issues framed by him, thus.
9. Re. Issue 1
9.1 Apropos Issue 1, the learned ADJ held that, in order to succeed
in a claim under Section 6 of the Specific Relief Act, Satish Chand
was only required to prove, firstly, that he was in possession of the
suit property till 27 January 2014 and, secondly, that he was
dispossessed from the suit property, on 27 January 2014, by Raj
Kumar.
9.2 The learned ADJ found that the evidence of PW-1, PW-2 and
PW-3 proved that Satish Chand had in fact been in possession of the
suit property till 27 January 2014 as a tenant under Raghunath Singh.
9.3 The burden had, thereupon, shifted to Raj Kumar to support his
claim of having been in possession of the suit property as a tenant
under Raghunath Singh, which he had not successfully discharged.
9.4 In view thereof, the learned ADJ held that Satish Chand had
succeeded in proving that he was in possession of the suit property till
27 January 2014 and that his possession was forcibly taken over by
Raj Kumar.
9.5 Issue 1 was, therefore, decided in favour of Satish Chand and
against Raj Kumar.
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10. Re. Issues 2 and 3
The findings on Issues 2 and 3 were an inevitable sequitur to the
findings on Issue 1. Having found that Satish Chand was in fact in
possession of the suit property till 27 January 2014, and that he was
forcibly dispossessed by Raj Kumar, the learned ADJ held Satish
Chand to be entitled to a decree of possession in respect of the suit
property against Raj Kumar. The suit was accordingly decreed.
Admittedly, the judgment and decree dated 19 November 2016 was
never challenged by any means known to law and has, therefore,
become final.
11. Satish Chand filed Execution Civil 1267/2017 before the
learned ADJ for execution of the aforesaid judgment and decree dated
19 November 2016.
12. Raj Kumar filed objections against the Execution Petition under
Order XXI Rule 582 of the CPC, in which he claimed that, during the
2 58. Adjudication of claims to, or objections to attachment of, property. -
(1) Where any claim is preferred to, or any objection is made to the attachment of, any
property attached in execution of a decree on the ground that such property is not liable to such
attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the
provisions herein contained:
Provided that no such claim or objection shall be entertained--
(a) where, before the claim is preferred or objection is made, the property attached
has already been sold; or
(b) where the Court considers that the claim or objection was designedly or
unnecessarily delayed.
(2) All questions (including questions relating to right, the title or interest in the property
attached) arising between the parties to a proceeding or their representatives under this rule and
relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with
the claim or objection and not by a separate suit.
(3) Upon the determination of the questions referred to in sub-rule (2), the Court shall, in
Signature Not Verified accordance with such determination,--
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pendency of the suit, he had surrendered possession of the suit
property to Raghunath Singh.
13. In view of the said submission, the learned ADJ dismissed
Execution Civil 1267/2017 by judgment dated 15 February 2018,
holding that as possession of the suit property was no longer with Raj
Kumar, the decree could not be executed against him.
14. Aggrieved thereby, Satish Chand moved this Court by way of
Ex. FA 19/2018 (Satish Chand v. Raj Kumar).
15. Said appeal was decided by a Coordinate Single Bench of this
Court by judgment dated 17 September 2018. Paras 17 and 21 to 24 of
the judgment are relevant and may be reproduced thus:
"17. The position which thus emerges is, (i) that the
appellant/plaintiff himself, admittedly was/is a tenant in the shop
under Raghunath Singh; (ii) a decree for recovery of possession of
the said shop was passed in favour of the appellant/plaintiff and
against the respondent/defendant; and, (iii) notwithstanding the
said decree having attained finality, the application for execution of
the said decree has been dismissed owing to the stand of the
respondent/defendant that he had in January, 2016 i.e. prior to the
date of the decree dated 19th November, 2016, delivered
possession of the shop to the landlord Raghunath Singh. The
question which arises is, whether on a defendant/judgment debtor
(a) allow the claim or objection and release the property from attachment either
wholly or to such extent as it thinks fit; or
(b) disallow the claim or objection; or
(c) continue the attachment subject to any mortgage, charge or other interest in
favour of any person; or
(d) pass such order as in the circumstances of the case it deems fit.
(4) Where any claim or objection has been adjudicated upon under this rule, the order made
thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as
if it were a decree.
(5) Where a claim or an objection is preferred and the Court, under the proviso to sub-rule
(1), refuses to entertain it, the party against whom such order is made may institute a suit to
establish the right which he claims to the property in dispute; but, subject to the result of such suit,
Signature Not Verified if any, an order so refusing to entertain the claim or objection shall be conclusive.
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so parting with possession of the property, for recovery of
possession whereof from him a suit is pending, the suit or the
decree ultimately passed therein can be defeated.
*****
21. In my mind there is no doubt as to the position of law.
Raghunath Singh, even if landlord of the appellant/plaintiff, could
not have recovered possession of the premises let out to the
appellant/plaintiff, save in accordance with law. Raghunath Singh
on the contrary, has recovered possession of the said premises from
the appellant/plaintiff, by taking possession thereof from the
respondent/defendant who himself has been found in the judgment
and decree in the suit, to have without the consent of the
appellant/plaintiff and otherwise than in due course of law,
dispossessed the appellant/plaintiff, from the said premises and
who has been ordered and/or directed to deliver possession of the
said premises to the appellant/plaintiff. If law were to be permitted
to allow so, no claim for recovery of possession will ever attain
finality or even if allowed by Court, fructify, with the
dispossessors, without due process of law, from immovable
property or persons in unauthorised occupation of immovable
property, after fully contesting the proceedings filed against them
for recovery of possession of such property and losing the said
proceedings or when on the verge of losing the same, transferring
possession to another and the lawful owner/occupier being required
to institute fresh proceedings against such transferee.
22. The counsel for the appellant/plaintiff rightly draws
attention to Section 52 of the Transfer of Property Act, 1882 which
inter alia provides that during the pendency of a suit, the property
cannot be transferred or otherwise dealt with, so as to affect the
right of any of the parties thereto under any decree or order which
may be made therein, except under the authority of the Court. The
admitted act of the respondent/defendant/judgment debtor, of
handing over possession of the shop to Raghunath Singh, during
the pendency of the suit filed by the appellant/plaintiff, amounted
to otherwise dealing with the property and Raghunath Singh shall
remain bound by the decree and the appellant/plaintiff, in
execution, will remain entitled to recover possession from
Raghunath Singh and/or whosoever else may be in possession of
the property unless they establish any independent right.
23. I may add, that it is for this reason only that Order XXI
Rule 35 of the CPC, while providing mode of execution of a decree
for immovable property, in sub-rule (1) thereof provides that where
a decree is for delivery of any immovable property, possession
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thereof shall be delivered to the party to whom it has been
adjudged, by removing "any person bound by the decree who
refuses to vacate the property". The said Rule does not say '....by
removing the defendant/judgment debtor from the property'. The
decree is thus entitled to be executed, not only against the
defendant/judgment debtor but against any person who may be
found in possession of the property. This becomes further clear
from Rule 102 of Order XXI which provides that nothing in Rules
98 and 100 shall apply to resistance or obstruction in execution of a
decree for possession of immoveable property by a person to
whom judgment debtor has transferred the property after the
institution of the suit in which decree was passed or to the
dispossession of any such person.
24. Though the law is absolutely clear and no precedent is
required but since the Additional District Judge, notwithstanding
the same has dismissed the execution, it is also deemed appropriate
to refer to Silverline Forum Pvt. Ltd. Vs. Rajiv Trust3 holding
that if the resistance to the execution is made by transferee
pendente lite of the judgment debtor, the scope of adjudication
under Rule 101 of Order XXI4 of the CPC would be shrunk to the
limited question whether he is such transferee and on a finding in
the affirmative regarding that point, the Execution Court has to
hold that he has no right to resist in view of the clear language
contained in Rule 1025; it was further held that exclusion of such a
transferee from raising further objection is based on the salutary
principle adumbrated in Section 526 of the Transfer of Property
3 (1998) 3 SCC 723
4 101. Question to be determined. - All questions (including questions relating to right, title or interest in
the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their
representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing
with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything
to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide
such questions.
5 102. Rules not applicable to transferee pendente lite. - Nothing in Rules 98 and 100 shall apply to
resistance or obstruction in execution of a decree for the possession of immovable property by a person to
whom the judgment-debtor has transferred the property after the institution of the suit in which the decree
was passed or to the dispossession of any such person.
Explanation. - In this rule, "transfer" includes a transfer by operation of law.
6
52. Transfer of property pending suit relating thereto. - During the pendency in any Court having
authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such
limits by the Central Government , of any suit or proceeding which is not collusive and in which any right to
immovable property is directly and specifically in question, the property cannot be transferred or otherwise
dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any
decree or order which may be made therein, except under the authority of the Court and on such terms as it
may impose.
Explanation. - For the purposes of this section, the pendency of a suit or proceeding shall be
deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a
court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final
decree or order, and complete satisfaction or discharge of such decree or order has been obtained, or has
become unobtainable by reason of the expiration of any period of limitation prescribed for the execution
thereof by any law for the time being in force.
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Act. In Usha Sinha Vs. Dina Ram7 it was further held that a
transferee from a judgment debtor is presumed to be aware of the
proceedings before a Court of law and that Rule 102 of Order XXI
of the CPC takes into account the ground reality and refuses to
extend a helping hand to purchasers of property in respect of which
litigation is pending. It was reasoned that if unfair, inequitable or
undeserved protection is afforded to a transferee pendent lite, a
decree holder will never be able to realize the fruits of his decree
and every time the decree holder seeks a direction from a Court to
execute the decree, the judgment debtor or his transferee will
transfer the property and the new transferee will offer resistance or
cause obstruction; to avoid such a situation, Rule 102 of Order XXI
of the CPC has been enacted."
16. Nonetheless, in para 26, this Court deemed it appropriate, while
setting aside the order dated 15 February 2018 passed by the learned
ADJ which dismissed Execution Civil 1267/2017, and remanding the
said execution petition for de novo consideration, to direct notice to be
issued to the appellant Raghunath Singh to ascertain whether he had
any independent claim in respect of the suit property.
17. Notice was accordingly issued to the appellant by the learned
ADJ. As the appellant had expired, his widow and six daughters filed
objections to the judgment and decree dated 19 November 2016 under
Order XXI Rule 58 of the CPC on 11 March 2020. Paras 7 to 10, 13
and 15 to 20 of the objections may be reproduced thus:
"7. That wife of Sh. Raghunath Singh, namely Smt. Sukhma
Devi is owner in possession of the shop in question. By virtue of
documents agreement to sell, GPA, Receipt, Will etc. all dated
16.01.1995 executed by Sh. Raghunath Singh in favour of Smt.
Sukhma Devi, she became the owner of the property/shop in
question.
7 (2008) 7 SCC 144
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8. That since long, the JD Raj Kumar was tenant of Sh.
Raghunath Singh for two shops i.e. one of shop in question and
second adjacent of first shop.
9. That in January 2016, the JD vacated the shop in question
and handed over the same to Sh. Raghunath Singh. This fact of
handed over the possession of suit shop was properly informed the
JD to the court.
10. That it is pertinent to mention here that Late Sh. Raghunath
Singh was the landlord of the entire property. The Decree Holder
was a tenant of one shop (back side) and one Room/Store of Late
Sh. Raghunath Singh, but any ever point of time the Decree Holder
had not informed to Late Sh. Raghunath Singh that any civil
proceeding in respect of shop in question is going on.
*****
13. That from the statement of Sh. Raghunath Singh in Satish
Chand's permanent injunction suit, and Sh. Raghunath Singh's suit
for possession it was crystal clear that Sh. Raghunath Singh had
denied the tenancy of Satish Chand in the shop in question.
*****
15. That in main suit related to present decree the Judgment
Debtor Sh. Rajkumar was the alone defendant. The DH malafidely
had not made a party to Sh. Raghunath Singh while he was the
necessary party for proper adjudication of the matter.
16. That any ever point of time neither Late Sh. Raghunath
Singh nor Smt. Sukhma Devi lent the Shop in question to the
Decree Holder.
17. That in above mentioned matter neither Late Sh. Raghunath
Singh nor Smt. Sukhma Devi was the party, so the decree passed in
this suit or present execution proceeding cannot be sustained
against the Objector.
18. That in main suit related to present proceeding, neither DH
nor JD called Sh. Raghunath Singh as a witness.
19. It's a trite law that a order/judgment/proceeding cannot be
to impose on any third party which was not a party in the suit.
20. That ends of the justice would be met only if the present
Objections of the Objector is allowed by this Hon'ble court as there
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are sufficient and plausible reasons for the acceptance of the
present Objections."
(Emphasis supplied)
18. Vide order dated 22 April 2022, the learned ADJ observed and
held, in paras 9 to 17, thus:
"9. The suit was dismissed but there was no observation of Ld.
Court in the suit with respect to extent of tenanted premises or that
the DH of present case was having tenancy of two shops. Though
the court discussed that Raghunath filed the suit by amalgamating
in one suit i.e. one tenancy of room and one tenancy of one shop
but again no observation was given as to what was the extent of
tenancy.
10. Para No. 28 of that judgment has been perused and the plea
of DH herein regarding the tenancy of two shops was not
adjudicated upon so there is no question of res judicata over the
same. Order of Hon'ble High Court is also giving power to the
court to adjudicate the right of Sh. Raghunath Singh. Though the
counsel for DH has argued that JD and Sh. Raghunath Singh are
hand in gloves with each other. This argument is accepted that
there is another dimension to this argument as to why it can be
observed by the court that DH and JD were hand in gloves and why
Sh. Raghunath was not made party as DH in that suit.
11. Rather the fact that JD has handed over the possession to
Sh. Raghunath was not brought before the court and at any point of
time, it has been pleaded by objector that JD has handed over the
possession of shop to Raghunath Singh in January, 2016 and suit of
the plaintiff was decreed on 19.11.2016 and subsequent
development should have been brought on record by DH and it is
upon him to explain as to why he concealed the same. So the
arguments of objector that in fact JD was tenant in the shop cannot
be brushed aside without giving finding on the same.
12. In para No. 9 of the objection, it has been pleaded that JD
handed over the possession in January 2016 and in reply, it has
been mentioned by DH that he delivered the possession of shop
after passing of decree, so this question is to be adjudicated upon.
13. Another point to be considered is that if DH is saying that
he was having two shops then he has to explain as to what was the
Signature Not Verified
rate of rent and whether it was being paid through cash or cheque
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and what was the extent of tenanted premises for which rent was
paid. These question are also required to be adjudicated upon and
both the parties are to lead documentary and oral evidence. It is
also required to be seen as to whether there was any rent agreement
in writing between the parties and what were the terms and
conditions of the same because when the suit for possession was
filed by Raghunath was dismissed, there was question as to
whether property is governed by Delhi Rent Control Act or not and
finding was written in favour of present DH and against Raghunath
but there is observation in the judgment regarding the rate of rent
and it has to be seen whether rate of rent as stated by DH in that
case was pertaining to two shops and one room or was one shop
and room. This finding is also missing in the judgment dated
06.01.2017 supra.
14. Another point raised before court is that observation was
given in judgment dated 19.11.2016 against which was execution
filed as to why Raghunath was not produced in evidence by JD of
the present case. The counsel for objector has argued that first of
all, for want of evidence of Raghunath Singh, in a case of
defendant evidence, he should not suffer and his property is
involved and it was upon JD to explain as to why he did not
explain him regarding pendency of present suit, so that he could
move application there and then U/o 1 Rule 10 CPC to implead
him as a party. Now he cannot even assail the judgment as he is not
party and only option left with him is by way of filing the present
objections. The argument is tenable.
15. Second argument is also interested that in both the cases,
the DH has produced one Shishpal in his favour and against
Raghunath and Shishpal is son in law of Raghunath Singh and he
has deposed against his father in law meaning thereby there was
something brewing in between DH and Shishpal.
16. So all these questions require answers in the execution on
the objection so no straightway order can be passed for issuance of
warrants of possession and the objections have forced. The
objector is also entitled to have stay in the execution petition.
17. Accordingly, warrants of possession are hereby stayed till
the time of decision on objections after leading the evidence by
parties. The plea of objector is hereby allowed to that extent."
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19. Satish Chand filed an application under Order XLVII Rule 18 of
the CPC seeking review of the order dated 22 April 2022 supra of the
learned ADJ. That application has been allowed by the impugned
order dated 16 August 2023, paras 10, 11 and 12.2 of which read as
under:
"10. Having gone through the record very minutely, in my
opinion it would have been apt if first of all observations passed by
the Hon'ble High Court in Ex. FA No.19/18 be noted. Infact the
Hon'ble High Court had dealt with all the aspects of the case and
taken note of the plea of the objector that the possession had been
handed over back to Raghunath Singh by the JD during subsistence
of the case. Hon'ble High Court had observed as hereunder:
"17. The position which thus emerges is, (i) that the
appellant/plaintiff himself, admittedly was/is a tenant in the
shop under Raghunath Singh; (ii) a decree for recovery of
possession of the said shop was passed in favour of the
appellant/plaintiff and against the respondent/defendant;
and, (iii) notwithstanding the said decree having attained
finality, the application for execution of the said decree has
been dismissed owing to the stand of the
respondent/defendant that he had in January, 2016 i.e. prior
to the date of the decree dated 19th November, 2016,
delivered possession of the shop to the landlord Raghunath
Singh. The question which arises is, whether on a
defendant/judgment debtor so parting with possession of
the property, for recovery of possession whereof from him
a suit is pending, the suit or the decree ultimately passed
therein can be defeated.
*****
8 1. Application for review of judgment. -
(1) Any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed, but from which no appeal
has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or evidence which, after the exercise of
due diligence, was not within his knowledge or could not be produced by him at the time when the
decree was passed or order made, or on account of some mistake or error apparent on the face of the
record, or for any other sufficient reason, desires to obtain a review of the decree passed or order
made against him, may apply for a review of judgment of the Court which passed the decree or
Signature Not Verified made the order.
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21 In my mind there is no doubt as to the position of
law. Raghunath Singh, even if landlord of the
appellant/plaintiff, could not have recovered possession of
the premises let out to the appellant/plaintiff, save in
accordance with law. Raghunath Singh on the contrary, has
recovered possession of the said premises from the
appellant/plaintiff, by taking possession thereof from the
respondent/defendant who himself has been found in the
judgment and decree in the suit, to have without the consent
of the appellant/plaintiff and otherwise than in due course
of law, dispossessed the appellant/plaintiff, from the said
premises and who has been ordered and/or directed to
deliver possession of the said premises to the
appellant/plaintiff. If law were to be permitted to allow so,
no claim for recovery of possession will ever attain finality
or even if allowed by Court, fructify, with the dispossessors,
without due process of law, from immovable property or
persons in unauthorised occupation of immovable property,
after fully contesting the proceedings filed against them for
recovery of possession of such property and losing the said
proceedings or when on the verge of losing the same,
transferring possession to another and the lawful
owner/occupier being required to institute fresh
proceedings against such transferee.
22. The counsel for the appellant/plaintiff rightly draws
attention to Section 52 of the Transfer of Property Act,
1882 which inter alia provides that during the pendency of
a suit, the property cannot be transferred or otherwise dealt
with, so as to affect the right of any of the parties thereto
under any decree or order which may be made therein,
except under the authority of the Court. The admitted act of
the respondent/defendant/judgment debtor, of handing over
possession of the shop to Raghunath Singh, during the
pendency of the suit filed by the appellant/plaintiff,
amounted to otherwise dealing with the property and
Raghunath Singh shall remain bound by the decree and the
appellant/plaintiff, in execution, will remain entitled to
recover possession from Raghunath Singh and/or
whosoever else may be in possession of the property unless
they establish any independent right.
11. It is but apparent that possession of the suit shop was
handed over by JD Raj Kumar during subsistence of the suit which
was filed by Satish Chand contending that he was wrongly
dispossessed. Such handing over of the possession back to
owner/landlord does not disentitle DH to seek fruits of decree qua
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the subsequent transferee as well though he may be the actual
owner of the property. The fact that his settled possession over the
shop and dispossession by the defendant/JD have been proved on
record and thus he is entitled to get the possession back -- the
same is the objective of a suit U/s 6 of the Specific Relief Act,
1963 i.e. to prevent illegal and unauthorised taking over of
possession except by due process of law. Plaintiff had complained
that he was wrongly dispossessed. The adjudication is to the effect
that indeed he was wrongly dispossessed and he is accordingly to
be put back into possession. Notwithstanding the fact that the
possession was handed over by the JD to Raghunath Singh the
owner/landlord of the property it still does not in any manner
defeat the right of the plaintiff/DH to seek the possession for the
reason that he was in possession and wrongly dispossessed. The
story/pleadings of JD Raj Kumar that he was having possessory
right over the shop on the basis of tenancy of Raghunath Singh was
discarded for the reason that Ld. ADJ in the decree has observed
that the possession was with the DH and he was wrongly
dispossessed. It is but obvious that the original owner was
Raghunath Singh and he would have accorded his permission to JD
Raj Kumar to retain the shop, additionally for the reason that he
had one more shop and coupled with the fact that he had inimical
terms with the decree holder Satish Chand with whom he was
litigating does not in any manner mean that the fruits of decree
cannot be given to the DH owing to this particular plea of handing
back possession to the owner of the property."
*****
12.2 Considering the totality of facts and circumstances of the
case, in my opinion there was no justification for directing the
parties to lead evidence in view of categorical directions passed by
the Hon'ble High Court as possession of the suit shop had already
been handed over by JD Raj Kumar to Raghunath Singh during
subsistence of the case itself. Suit had been decreed in favour of
DH and fruit of decree cannot be denied merely on the plea that JD
has already handed over possession to Raghunath Singh the
original owner/landlord. There is an error apparent on record and
the order dated 22.04.2022 passed by my Ld. Predecessor is liable
to be set aside by exercising the review jurisdiction."
20. Aggrieved by the said order, Raghunath Singh, who is
undisputedly the landlord of the suit property, has preferred the
present appeal before this Court.
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21. I have heard Mr. Ramesh Kumar Jain, learned Counsel for the
appellant and Mr. J.K. Jain, learned Counsel for the respondent.
22. Learned Counsel for the appellant submits that the impugned
order travels far beyond the limited confines of review jurisdiction as
conferred by Order XLVII of the CPC.
23. The learned ADJ has, in his submission, effectively sat in
appeal over the judgment of his predecessor. He submits that the
learned ADJ was perfectly justified in observing that the rival
contentions required to be tested on evidence and, therefore, relegated
the parties to trial. He submits that the order dated 22 April 2022 was
in fact passed ad invitum against Satish Chand, who chose not to
implead the appellant in the suit instituted by him against Raj Kumar.
He further submits that it was the appellant's clear and categorical
case that he had never inducted Satish Chand as a tenant in the suit
property and that Raj Kumar had remained his tenant from the
beginning. He also disputes the appellant's claim of having been in
possession of the suit property at any point of time.
24. Learned Counsel further contends that, in the absence of proof
of possession, there could be no question of any relief being granted
under Section 6 of the Specific Relief Act. All these facts, he submits,
were rightly noted by the learned ADJ as requiring a trial and leading
of evidence, so that there was no occasion, even on merits, for the
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order dated 22 April 2022 of the learned ADJ to be reversed in review
jurisdiction.
25. In support of his submission that the impugned order travels
beyond the confines of review jurisdiction, Mr. Jain relies on the
judgment of the Supreme Court in Sanjay Kumar Agarwal v. Sales
Tax Officer9.
26. Mr. J K Jain merely reiterates the reasoning contained in the
impugned order which, he submits, does not brook interference.
Analysis
27. Having heard learned Counsel and perused the material placed
on record, I do not find that any case for interference with the
impugned order dated 16 August 2023 of the learned ADJ exists.
28. It is true that the scope of review jurisdiction is limited. A
review court cannot sit in appeal over the decision under review. The
scope of review jurisdiction has thus been authoritatively delineated
by the Supreme Court most recently in Sanjay Kumar Agarwal, on
which learned Counsel for the appellant relies:
"16. The gist of the afore-stated decisions is that:--
(i) A judgment is open to review inter alia if there is a
mistake or an error apparent on the face of the record.
(ii) A judgment pronounced by the Court is final, and
departure from that principle is justified only when
9 2023 SCC OnLine SC 1406
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circumstances of a substantial and compelling character
make it necessary to do so.
(iii) An error which is not self-evident and has to be
detected by a process of reasoning, can hardly be said to be
an error apparent on the face of record justifying the court
to exercise its power of review.
(iv) In exercise of the jurisdiction under Order 47 Rule
1 CPC, it is not permissible for an erroneous decision to be
"reheard and corrected."
(v) A Review Petition has a limited purpose and cannot
be allowed to be "an appeal in disguise."
(vi) Under the guise of review, the petitioner cannot be
permitted to reagitate and reargue the questions which have
already been addressed and decided.
(vii) An error on the face of record must be such an error
which, mere looking at the record should strike and it
should not require any long-drawn process of reasoning on
the points where there may conceivably be two opinions.
(viii) Even the change in law or subsequent
decision/judgment of a co-ordinate or larger Bench by itself
cannot be regarded as a ground for review."
29. However, it is equally true that, if the decision under review
suffers from any error apparent on the face of the record, a case for
interference in review jurisdiction is certainly made out.
30. The scope of the expression "error apparent on the face of the
record" is not apparent from the CPC and, indeed, as far back as in
Hari Vishnu Kamath v. Ahmad Ishaque10, a bench of seven Hon'ble
judges of the Supreme Court held that "what is an error apparent on
the face of the record cannot be defined precisely or exhaustively,
there being an element of indefiniteness inherent in its very nature,
10 AIR 1955 SC 233
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and it must be left to be determined judicially on the facts of each
case". In S. Bagirathi Ammal v. Palani Roman Catholic Mission11,
the Supreme Court held:
"12. An error contemplated under the Rule must be such which
is apparent on the face of the record and not an error which has to
be fished out and searched. In other words, it must be an error of
inadvertence. It should be something more than a mere error and it
must be one which must be manifest on the face of the record.
When does an error cease to be mere error and becomes an error
apparent on the face of the record depends upon the materials
placed before the court. If the error is so apparent that without
further investigation or enquiry, only one conclusion can be drawn
in favour of the applicant, in such circumstances, the review will
lie. Under the guise of review, the parties are not entitled to
rehearing of the same issue but the issue can be decided just by a
perusal of the records and if it is manifest can be set right by
reviewing the order. With this background, let us analyse the
impugned judgment of the High Court and find out whether it
satisfies any of the tests formulated above.
*****
26. As held earlier, if the judgment/order is vitiated by an
apparent error or it is a palpable wrong and if the error is self-
evident, review is permissible and in this case the High Court has
rightly applied the said principles as provided under Order 47 Rule
1 CPC. In view of the same, we are unable to accept the arguments
of learned Senior Counsel appearing for the appellant, on the other
hand, we are in entire agreement with the view expressed by the
High Court."
(Emphasis supplied)
In a challenge to an order passed by the Central Administrative
Tribunal refusing to correct what was contended to be an error
apparent on the face of the record, the Supreme Court in Surjit Singh
v. UOI12 returned the following clearly critical observations:
"7. In the light of these directions, it is obvious that the
Government of India had prepared the seniority list. The
11 (2009) 10 SCC 464
12 (1997) 10 SCC 592
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contention of the promotees which was found acceptable to the
Tribunal that preceding the date of amendment the Government
was devoid of power to carry forward all unfilled vacancies to the
direct recruits and that all these vacancies are meant to be thrown
open to the promotees, is clearly a misinterpretation of the rules
and on that basis the directions came to be issued by the Tribunal.
This Court had suggested on earlier occasion that vacancies meant
for the direct recruits may be carried forward for two years after
the recruitment year and thereafter the unfilled vacancies would be
thrown open to the respective cadres. Under these circumstances,
the view of the Tribunal is clearly illegal; unfortunately, the
Tribunal has wrongly stated that if they commit mistake, it is for
this Court to correct the same. That view of the Tribunal is not
conducive to the proper functioning of judicial service. When a
patent error is brought to the notice of the Tribunal, the Tribunal
is duty-bound to correct, with grace, its mistake of law by way of
review of its order/directions."
(Emphasis supplied)
31. The impugned order essentially relies on the findings of this
Court in its judgment dated 17 September 2018 in Ex. FA 19/2018 to
hold that the order dated 22 April 2022 suffered from an error
apparent on the face of the record.
32. The issue before this Court is whether the impugned order dated
16 August 2023 trespasses the boundaries of review jurisdiction as
conferred by Order XLVII of the CPC.
33. Having perused the order dated 22 April 2022, vis-à-vis the
judgment dated 17 September 2018 passed by this Court in Ex.FA
19/2018, I find myself in agreement with the learned ADJ, and I may
straightaway say why.
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34. The learned ADJ has not, in the impugned order dated 16
August 2023, dismissed the appellant's objection. He has merely
reviewed the earlier order dated 22 April 2022 of his predecessor to
the extent it directed the parties to lead evidence and, therefore,
reignited the trial. This, according to the impugned order, was
palpably erroneous. The view is unexceptionable. In passing the
order dated 22 April 2022, the learned ADJ overlooked the
observations - nay, findings - contained in the judgment dated 17
September 2018 of this Court in Ex. FA 19/2018. This Court, in
unequivocal terms, and, by placing reliance on Section 52 of the
Transfer of Property Act and Order XXI Rule 101 and 102 of the
CPC, held that the induction of a third party - even if he were the
landlord - in the suit premises when the suit was pending, without
leave of the Court, was impermissible and that, if such a third party
were inducted, he would have to abide by the decree and could not
defeat the execution proceedings. More than once, this Court has
emphasized that it is only if such third party could establish an
independent right in respect of the suit property that he would have
any locus to obstruct the execution. Inasmuch as an objection under
Order XXI Rule 58 has to be decided by the executing Court, such
right has to be pleaded in the objections themselves. The objections
filed by Sukhma Devi did not plead any such independent right, but
merely reiterated the contentions earlier urged by Raj Kumar, which
were comprehensively considered and rejected by the learned ADJ
while passing the judgment and decree dated 19 November 2016
under execution. Allowing a fresh trial without any such pleading of
an independent right, therefore, completely defeated the observations
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of this Court in the order dated 17 September 2018. This was an error
which was apparent at a bare glance from the findings in the order
dated 17 September 2018, vis-à-vis the averments in the objections
filed by the appellant under Order XXI Rule 58. No lengthy process
of argument or debate was involved. It, therefore, constituted an
"error apparent on the face of the record" and, in so holding, the
learned ADJ cannot be said to have erred, either on facts or in law.
35. Mr. Jain, learned Counsel for the appellant submits that, in
exercise of review jurisdiction, a court cannot substitute, for the view
taken in the decision under review, another view which appears to it to
be better.
36. There can be no cavil with this proposition. That, however, is
not what the impugned order does. The impugned order holds that the
decision, in the order dated 22 April 2022 under review, to restart a
trial on the objections that the appellant desired to urge, suffered from
an error apparent on the face of the record. The impugned order
arrives at this decision essentially on the basis of the findings
contained in the judgment dated 17 September 2018 passed by this
Court in Ex. FA 19/2018.
37. To my mind, the decision is unexceptionable. The tone and
tenor of paras 17 and 21 to 23 of the judgment dated 17 September
2018 passed by this Court in Ex. FA 19/2018 are clear and
unmistakable. This court clearly held that, in the said paragraphs, that
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(i) possession of the premises let out to Satish Chand could
not have been recovered by Raghunath Singh save and except in
accordance with law,
(ii) on the contrary, Raghunath Singh recovered possession
of the suit property from Satish Chand by taking possession
from Raj Kumar,
(iii) Raj Kumar had himself been found, by the judgment and
decree in execution - which had attained finality - to have
dispossessed Satish Chand from the suit property otherwise than
in accordance with law,
(iv) if the execution of such a decree could be permitted to be
frustrated by the induction, in the suit property, of a third party,
to whom the defendant in the suit property surrendered
possession, even while the suit was pending, no claim for
recovery of possession would ever attain finality or, even if it
did, would ever be capable of being executed as new persons
would take possession of the suit property,
(v) Section 52 of the Transfer of Property Act also proscribes
transfer of the suit property during the pendency of the suit for
recovery of possession, so as to effect the right of any of the
parties to the suit, under any decree or order which may be
made in the suit, except under authority of the Court,
(vi) Raghunath Singh was, therefore, bound by the decree and
Satish Chand, in execution, would remain entitled to recovery
possession from Raghunath Singh and/or any other person who
would come into the possession of the suit property unless such
person established an independent right,
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(vii) Order XXI Rule 35(1)13 of the CPC specifically provided
that, in execution of a decree for delivery of immovable
property, possession of such property would be delivered to the
party in whose favour the decree was passed, by removing any
person bound by the decree who refused to vacate the property,
(viii) thus, such a decree was executable, not only against the
defendant/judgment debtor but also against any person who had
come into possession of the suit property during the pendency
of the suit,
(ix) similarly, Order XXI Rule 102 provided that nothing in
Order XXI Rules 98 and 100 would apply to resistance or
obstruction in execution of a decree for possession of
immovable property by a person to whom the judgment debtor
had transfer the property after the institution of the suit.
38. This Court, therefore, clearly held that Raghunath Singh, having
come into possession of the suit property during the pendency of the
suit, would be bound by the judgment and decree dated 19 November
2016 which would be executable against him, unless he could
establish an independent right. In fact, in para 24, the position in law
was further clarified by holding that any resistance to the execution by
a transferee pendente lite of the judgment debtor would be limited to
the issue of whether such objector was in fact a transferee and, if he
was, the execution court had necessarily to hold that he had no right to
13 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
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resist the execution in view of the clear language contained in Order
XXI Rule 102 of the CPC. The following passage from Silverline
Forum, on which this Court relied to return the said findings make
this position clear:
"10. It is true that Rule 99 of Order 21 is not available to any
person until he is dispossessed of immovable property by the
decree-holder. Rule 101 stipulates that all questions "arising
between the parties to a proceeding on an application under Rule
97 or Rule 99" shall be determined by the executing court, if such
questions are "relevant to the adjudication of the application". A
third party to the decree who offers resistance would thus fall
within the ambit of Rule 101 if an adjudication is warranted as a
consequence of the resistance or obstruction made by him to the
execution of the decree. No doubt if the resistance was made by a
transferee pendente lite of the judgment-debtor, the scope of the
adjudication would be shrunk to the limited question whether he is
such a transferee and on a finding in the affirmative regarding that
point the execution court has to hold that he has no right to resist
in view of the clear language contained in Rule 102. Exclusion of
such a transferee from raising further contentions is based on the
salutary principle adumbrated in Section 52 of the Transfer of
Property Act."
(Emphasis supplied)
39. Para 24 of the judgment dated 17 September 2018 further
proceeds to rely on the decision in Usha Sinha to hold that the court
could not extend a helping hand to a transferee pendente lite of
property in respect of which a litigation was pending, as, otherwise, a
decree holder would never be able to realise the fruits of the decree.
40. In the objections preferred by her under Order XXI Rule 58 of
the CPC, Sukhma Devi claimed that (i) Raj Kumar was the tenant of
Raghunath Singh in respect of the suit property, (ii) in January 2016,
Raj Kumar vacated the suit property and handed over possession
thereof to Raghunath Singh and (iii) Satish Chand was never the
tenant of Raghunath Singh in respect of the suit property.
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41. No other objection is raised in the application under Order XXI
Rule 58 of the CPC filed by Sukhma Devi.
42. These objections had already been raised by Raj Kumar before
the learned ADJ and considered while passing the judgment and
decree dated 19 November 2016, which forms subject matter of
execution.
43. Raghunath Singh could not legitimately seek to urge, with
nothing more, that, merely because he had come into possession of the
property during the pendency of the suit, he be permitted to urge the
very same pleas that had already been urged by Raj Kumar and
rejected. In any case, based on the very same pleas, Raghunath Singh
could not have had the execution proceedings stymied and a fresh trial
initiated. The mere change of the identity of the objector could hardly
be a ground for permitting the very same objections, already urged
and rejected, to again be canvassed, this time by Raghunath Singh, to
protract execution of the judgment and decree dated 19 November
2016- which has become final - indefinitely.
44. This Court, while directing issuance of notice to the appellant
Raghunath Singh in its order dated 17 September 2018, clarified that it
was doing so as to enable Raghunath Singh to establish any
independent right over the suit property, if he could. The objections
filed by Sukhma Devi on behalf of Raghunath Singh under Order XXI
Rule 58 of the CPC did not even plead any such independent right.
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45. The order dated 22 April 2022, therefore, reinitiated the trial
proceedings, this time qua Raghunath Singh, without examining
whether he had, in fact, in his under Order XXI Rule 58 of the CPC,
ventilated any independent right.
46. This was clearly not permissible and amounted, in fact, to
defeating the intent and purpose of the order dated 17 September 2018
passed by this Court in Ex. FA 19/2018.
47. In that view of the matter, I find no infirmity with the impugned
order dated 16 August 2023 passed by the learned ADJ in Execution
No. 1348/18.
48. For all the aforesaid reasons, this appeal is bereft of merit and is
accordingly dismissed.
C. HARI SHANKAR, J.
JANUARY 08, 2024
dsn
