Madhya Pradesh High Court
Hukumchand vs Namdev on 22 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 22 nd OF MAY, 2024
FIRST APPEAL No. 570 of 2016
BETWEEN:-
1. HUKUMCHAND S/O RAM GOPAL DUBEY, AGED
ABOUT 54 YEARS, JASWADI ROAD, RAM NAGAR
KHANDWA TEHSIL AND DISTRICT KHANDWA
(MADHYA PRADESH)
2. PANKAJ S/O HUKUMCHAND DUBEY, AGED ABOUT
27 YEARS, R/O JASWADI ROAD, RAM NAGAR
(MADHYA PRADESH)
3. KU. PALLAVI D/O HUKUMCHAND DUBEY, AGED
ABOUT 18 YEARS, R/O JASWADI ROAD, RAM
NAGAR (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI ASHISH SHROTI - ADVOCATE)
AND
1. NAMDEV S/O NARAYAN SAVKARE CHAMARWADI
LAKKARH BAZAR TEHSIL AND DISTRICT
KHANDWA (MADHYA PRADESH)
2. SMT. MAMTA W/O HUKUMCHAND DUBEY R/O
JASWADI ROAD, RAM NAGAR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SHAJIDDULLA KHAN - ADVOCATE FOR RESPONDENT NO.1)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This appeal has been filed being aggrieved by the order passed by the
3rd Additional District Judge, Khandwa in MJC No. 31/12 ( Hukumchand vs.
Namdev and Anr.) by which the appellants application under Order 21 Rule 97
r/w Section 106 of CPC has been dismissed.
2. The facts in nutshell giving rise to this appeal are that respondent No.
2 Mamta is the wife of appellant. She has executed an agreement to sale in
favour of the plaintiff/decree holder- Respondent No. 1 and when the agreement
to sale was not honored, the respondent No. 1 filed a Civil Suit before the 2nd
Additional District Judge, Khandwa that was registered as Civil Suit No. 24-
A/11 and an ex parte decree was passed on 21-07-2011 by which the
plaintiff/respondent No.1 suit was decreed and it was ordered to respondent
No.2 to execute a sale deed of plot No. M20-MIG situated at Housing Board
Colony, Khandwa, after receiving Rs.50, 000/- of the consideration amount.
The decree was not followed then the decree holder filed execution
proceedings. In the execution proceedings the appellant filed an objection on
the ground that he is the owner of the suit premises and the suit property was
purchased as a 'benami' in the name of his wife Mamta-respondent No.2 and
and she was not the owner and possession holder of the disputed property and
as appellant is residing in the suit house.
3. In execution proceedings, the trial Court after recording the evidence
has dismissed the petition,hence, this appeal.
4. Learned counsel for the appellant has submitted that the trial court has
wrongly appreciated the evidence and have not properly considered the legal
position that if any property is purchased in 'benami' in the name of his wife or
any unmarried daughter, the provision of Benami Transactions ( Prohibition )
Act, 1988 are not applicable and to support his argument on this point, he has
relied on the judgment of Jagdish Prasad Agarwal and Anr. vs. Rajkumar
s/o- Radheshyam Agarwal and Anr 2006 (2) MPLJ 603 and he has further
relied on the judgment of Hon'ble Apex Court in the case of Brahmdeo
Chaudhary vs. Rishikesh Prasad Jaiswal and Anr (1997) 3 SCC 994 and
submitted that by order 21 Rules 35, 97, 98, 99, 101 and 105, a stranger wants
to occupy the possession and rights of possession holder then the executing
Court is bound to decide the objections, even a stranger to proceedings may
file the application and the order passed by the executing Court shall be treated
as a decree.
5. Learned counsel for the respondent has submitted that the appellant
has failed to prove that the plot was purchased by the appellant and disputed
house was constructed by the appellant. He has further submitted that the
documents were submitted before the trial Court in which it is clearly
mentioned that basically the plot was allotted to one Rajesh Pawar (Ex.P/1) and
from him as per Ex. P/2, the plot was transferred ( re-allotted to Mamta Dubey)
daughter of Shri Damodar Prasad Dubey) and a lease deed was executed in
favour of Mamta Dubey D/o- Damodar Prasad Dubey. Thus, name of the
appellant is not mentioned. Judgment debtor as per Ex. P/5, the sanction of
construction was allotted in favour of Kumari Mamta Dubey. The said fact
finds place in Ex. P/6 hence, only on the basis of objection, the decree cannot
be passed by the competent Court by allowing the objections as he was not
party before the trial Court and the agreement to sale made by Mamta Bai is
void and so, the appeal be dismissed.
6. Heard the parties.
7. The appellants have filed an application under Order 41 Rule 27 of
CPC and by that submitted that additional documents be taken on record.
8. Learned counsel for the appellant has submitted that he has filed
documents of GPF advance and the affidavit of the sister, and brother of the
appellant and salary certificate, the documents of educational qualifications of
his daughter and son.
9. Learned counsel for the respondents has submitted that the
documents ought to have been produced before the trial Court but that has not
been produced and no reasons have been assigned why the documents has not
been produced before the trial Court and hence, documents cannot be taken
into record.
10. I have gone through the documents. The documents are substantial
in nature hence, the documents of GPF advance and educational qualifications
of the daughter and son of the appellant be taken into record. The documents
filed as affidavit cannot be taken into record as by this the appellants wants to
introduce the evidence and no reasons have been assigned why he has not
examined these witnesses before the trial Court hence, the affidavits are not
taken into record.
11. The documents exhibited by the appellants that are proceedings in
criminal proceedings under Section 138, Ex. P/14, the Mamta Bai is wife of
Hukumchand Dubey, the same fact finds place in Ex.P/16 thus, it is clear that
the appellant is the husband of the judgment debtor-Smt. Mamta. Furthermore,
from the marksheet and certificate of educational qualifications of Pallavi
Dubey, marksheet issued by the Central Board of Secondary Education of
Pallavi Dubey, the mothers name is Mamta and fathers name is Hukumchand
and the date of birth is written as 23-06-1988. In the same way, the marksheet
issued by the Madhya Pradesh Madhyamik Shiksha Mandal, Bhopal in the
marksheet of the Pankaj Chakerde and fathers name is Hukumchand Chakerde
and mothers name is Mamta Chakerde and the date of birth is 01-11-1989.
12. Thus, it is clear that before 01-11-1989, the appellant has married to
Mamta Chakerde and from their wedlock, one son and one daughter have born.
Thus, it is clear that at the time when the plot was purchased on lease Ex.P/1
dated 08-08-1989 and the transfer deed Ex. P/2 dated 31-12-1993, that the plot
was allotted and lease deed was executed in favour of judgment debtor, the
judgment debtor was married wife of the appellant and the house was
constructed after 05-04-1994.
13. The appellant has adduced the evidence and clearly stated that the
judgment debtor's father was labourer and he was not having source of income
and to contradict this fact, no evidence was adduced by the decree holder
except Ex. D/1 and Ex. D/2. All the documents have been produced from the
possession of the appellant though it is not clearly mentioned but, from the
documents of GPF advance of Rs. 40,000/- was withdrawn as advance from
his GPF account as he was serving in East Nimar District Co-operative Land
Development Bank, Khandwa and he has also submitted the document that he
was serving from 04-10-1979 and from his salary GPF was deducted.
14. From the suggestion by the decree-holder in the cross-examination
of the appellant- Hukumchand in paragraph-19, it is clear that the appellant is
residing in the suit premises and it is also admitted that he has not vacated the
suit premises and no question has been put regarding the possession of the
appellant over the disputed property. Thus, it is clear that the appellant is in the
possession of the disputed house.
15. From the above discussion, it is clear that though the house was
allotted in the name of judgment debtor but, the consideration amount was paid
by her husband and the house was constructed by the husband and after
personal dispute, the judgment debtor has left the matrimonial home and started
living separately, leaving behind his children and husband. If she was the owner
of the house, she must have thrown out her husband and children from her
house but contrary to it, she was thrown out of the disputed house and living
separately and nothing have been brought against the possession of the
appellant.
16. I have gone through the judgment of Jagdish Prasad Agarwal
(supra). This court has held that provisions of Benami Transactions
(Prohibition ) Act, ( 45 of 1988) does not apply if the property is purchased in
the name of wife or unmarried daughter as provided under Sub-Section (2 ) of
Section 3 of the Act.
17. Thus, the property as purchased in this case is not prohibited under
the provisions of Benami Transactions ( Prohibition ) Act, 1988.
18. Learned counsel for the appellant has submitted that he was not a
party before the trial Court and he is not bound to file any suit for quashment of
the judgment and decree passed by the trial Court and he may directly file an
application under Order 21 Rule 97 and 98 of CPC. On this point, in the case
o f Brahmdeo Chaudhary (supra), the Hon'ble Apex Court has held in
paragraph-9 as under :-
"9............The High Court by the impugned order and
judgment has taken the view that the only remedy available to
a stranger to the decree who claims any independent right,
title or interest in the decretal property is to go by Order 21,
Rule 99. This view of the High Court on the aforesaid
statutory scheme is clearly unsustainable. It is easy to
visualise that a stranger to the decree who claims an
independent right, title and interest in the decretal property
can offer his resistance before getting actually dispossessed.
He can equally agitate his grievance and claim for adjudication
of his independent right, title and interest in the decretal
property even after losing possession as per Order 21, Rule
99. Order 21, Rule 97 deals with a stage which is prior to the
actual execution of the decree for possession wherein the
grievance of the obstructionist can be adjudicated upon
before actual delivery of possession to the decree-holder.
While Order 21, Rule 99 on the other hand deals with the
subsequent stage in the execution proceedings where a
stranger claiming any right, title and interest in the decretal
property might have got actually dispossessed and claims
restoration of possession on adjudication of his independent
right, title and interest de hors the interest of the judgment-
debtor. Both these types of enquiries in connection with the
right, title and interest of a stranger to the decree are clearly
contemplated by the aforesaid scheme of Order 21 and it is
not as if that such a stranger to the decree can come in the
picture only at the final stage after losing possession and not
before it if he is vigilant enough to raise his objection and
obstruction before the warrant for possession gets actually
executed against him. With respect the High Court has totally
ignored the scheme of Order 21, Rule 97 in this connection
by taking the view that only remedy of such stranger to the
decree lies under Order 21, Rule 99 and he has no locus
standi to get adjudication of his claim prior to the actual
delivery of possession to the decree-holder in the execution
proceedings. The view taken by the High Court in this
connection also results in patent breach of principles of
natural justice as the obstructionist, who alleges to have any
independent right, title and interest in the decretal property
and who is admittedly not a party to the decree even though
making a grievance right in time before the warrant for
execution is actually executed, would be told off the gates
and his grievance would not be considered or heard on merits
and he would be thrown off lock, stock and barrel by use of
police force by the decree-holder. That would obviously
result in irreparable injury to such obstructionist whose
grievance would go overboard without being considered on
merits and such obstructionist would be condemned totally
unheard. Such an order of the executing court, therefore,
would fail also on the ground of non-compliance with basic
principles of natural justice. On the contrary the statutory
scheme envisaged by Order 21, Rule 97 CPC as discussed
earlier clearly guards against such a pitfall and provides a
statutory remedy both to the decree-holder as well as to the
obstructionist to have their respective say in the matter and to
get proper adjudication before the executing court and it is
that adjudication which subject to the hierarchy of appeals
would remain binding between the parties to such
proceedings and separate suit would be barred with a view to
seeing that multiplicity of proceedings and parallel
proceedings are avoided and the gamut laid down by Order
21, Rules 97 to 103 would remain a complete code and the
sole remedy for the parties concerned to have their grievances
once and for all finally resolved in execution proceedings
themselves."
19. Thus from the above discussion, it is clear that the appellant is the
real owner of the disputed property and he has filed objection before the trial
Court during the execution of decree, the ground that Mamta Bai is not the
original owner of the house but, 'Benamidar' of the property. Looking to the
principles laid down above, he is not bound to file a separate suit for annulment
of the decree passed in favour of the decree-holder in which, he was not a party
and by filing an application under Order 21 Rule 97 and 98 of CPC, he may
protect his right. The trial Court has wrongly appreciated the facts and hence,
the order passed by the trial Court is set aside, it is held that the judgment
debtor cannot take the possession of the disputed house from the appellant as
he is real owner and he is not bound by the judgment and decree passed on the
basis of agreement to sale executed by Smt. Mamta Bai, the deserted wife of
appellant.
19. Thus, the appeal is allowed.
20. With the copy of the order, record of the trial Court be returned
back.
21. Looking to the facts and circumstances, the parties shall bear their
own costs.
(DEVNARAYAN MISHRA)
JUDGE
PG
