Dinesh Kumar Pathak vs Pt.Ramvilas & Ors.
2024 Latest Caselaw 27929 MP

Madhya Pradesh High Court

Dinesh Kumar Pathak vs Pt.Ramvilas & Ors. on 4 October, 2024

Author: Dwarka Dhish Bansal

Bench: Dwarka Dhish Bansal

       1                                                                     F.A. No.574/1999

           IN THE HIGH COURT OF MADHYA PRADESH
                        AT JABALPUR
                                      BEFORE
           HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL

                        FIRST APPEAL No. 574 of 1999

                           DINESH KUMAR PATHAK
                                   Versus
                         PT. RAM VILAS AND OTHERS

Appearance:
  Shri Imtiaz Husain Senior Advocate with Shri Mohd. Sazid Khan, Advocate for
appellant.

     Shri G.S. Baghel, Advocate for LRs of respondent 1.

           Reserved on        :      21.08.2024
           Pronounced on :           04.10.2024
                                   JUDGMENT

This first appeal has been filed by defendant 2 challenging the judgment and decree dtd.15.09.1999 passed by 5th Additional District Judge, Sagar, District Sagar, Camp Khurai in civil suit No.1-A/98 whereby plaintiff/respondent 1-Pt. Ramvilas Hundet (now dead, through LRs)' suit has been decreed, filed for declaring the sale deed dtd. 21.07.1992 (Ex.P/7) to be ineffective, null & void.

2. In short the facts are that the respondent 1/plaintiff had instituted a civil suit with the allegations that there were two money decrees in favour of the plaintiff and against the defendant 1-Mohan Prasad. During execution proceedings of said money decrees, a compromise took place before the Executing Court in between the plaintiff and defendant 1- Mohan Prasad, whereby it was agreed that defendant 1 shall pay an

amount of Rs.15,000/- in two installments of Rs.7,500/- each, payable in the month of June 1992 and 1993 and upon failure to pay the aforesaid amount, the plaintiff would be entitled to get executed sale deed of an area 3 acres out of the land of defendant 1's share area 5.61 acres comprising of survey nos. 6/1, 7, 8, 180, 185, 467 or would get it recovered through auction, in pursuance of which, the order was passed on 16.09.1991 (Ex.P/2). It is alleged in the plaint that defendant 1 neither paid the amount nor executed the sale deed, hence the plaintiff approached the Court and the Court executed sale deed on 23.08.1995 (Ex.P/3) of an area 3 acres out of total area 16.84 hectares from the share of Mohan Prasad. It is alleged that when on the basis of sale deed dtd.23.08.1995 (Ex.P/3) the plaintiff tried to get his name mutated, then he came to know about execution of another sale deed dtd. 21.07.1992 (Ex.P/7) by defendant 1-Mohan Prasad in favour of defendant 2-Dinesh Kumar Pathak (appellant). Accordingly, the plaintiff alleged that the sale deed executed by defendant 1 in favour of defendant 2 is null and void and be cancelled. On inter alia allegations, the suit was prayed to be decreed.

3. Upon service of summons, the defendant 1 appeared and denied plaint averments and contended that he has not executed sale deed dtd.21.07.1992 (Ex.P/7) in contravention of order of the Court. He further contended that the plaintiff had the right to get recovered the money under the decree after getting the land/property auctioned but not by getting executed the sale deed because no such compromise could have taken place in respect of execution of sale deed, hence on the basis of such sale deed dtd.23.08.1995 (Ex.P/3), the plaintiff does not get any right. On inter alia contentions, the suit was prayed to be dismissed.

4. The defendant 2-Dinesh Kumar Pathak also filed his written statement and denied the plaint averments and contending the sale deed dtd.23.08.1995 (Ex.P/3), executed in favour of the plaintiff, to be illegal and without jurisdiction, tried to justify valid execution of sale deed dtd.21.07.1992 (Ex.P/7) by defendant 1 in his favour. On inter alia contentions, the suit was prayed to be dismissed.

5. On the basis of pleadings of the parties, trial Court framed four issues and recorded evidence of the parties. The plaintiff in support of his case examined, himself-Pt. Ram Vilas Hundet (PW-1), Rameshwar Prasad Kiledar (PW-2) and also produced documentary evidence (Ex.P/1 to P/7). In rebuttal, the defendant 2 examined, himself-Dinesh Kumar Pathak (DW-1), Rajdhar Singh (DW-2), Basir Mohammad (DW-3) & Satyanarayan (DW-4) and also produced documentary evidence (Ex.D/1 & D/2). The defendant 1-Mohan Prasad also examined himself.

6. After hearing the parties, trial Court vide judgment and decree dtd. 15.09.1999 held that the sale deed dtd.21.07.1992 (Ex.P/7) executed by defendant 1-Mohan Prasad in favour of defendant 2-Dinesh Kumar Pathak, is null and void to the extent of plaintiff's share covered by sale deed dtd.23.08.1995 (Ex.P/3) and the suit is not barred by limitation. Accordingly, decreed the suit.

7. Learned counsel for the appellant/defendant 2 submits that in the execution proceedings relating to money decree, compromise in respect of execution of sale deed could not have been effected. As such, Executing Court committed illegality in recording such compromise in between the plaintiff and defendant 1 and further committed illegality in executing the sale deed dtd.23.08.1995 (Ex.P/3) in favour of the plaintiff with regard to 3 acres land belonging to the defendant 1. By placing

reliance on the decision of Hon'ble Supreme Court in the case of Rameshwar Dass Gupta vs. State of U.P. and another (1996) 5 SCC 728, he submits that Executing Court cannot go behind the decree and placing reliance on a decision in the case of Abdul Gaffar Khan and another vs. Ishtiaq Ali and others AIR 1943 Oudh 354, learned senior counsel submits that provision contained in Section 52 of the Transfer of Property Act, has no application to the execution proceedings. He further submits that defendant 2 had purchased the land from defendant 1 without knowledge of alleged compromise (Ex.P/1) and consequent order dtd.16.09.1991 (Ex.P/2), therefore, he is a bonafide purchaser and his rights are not affected adversely by the documents (Ex.P/1 to P/3). In support of his averments, learned counsel also placed reliance on the decisions in the case of Gyasiram Kanairam Vaish v. Brij Bhushandas and another AIR 1973 M.P. 148; Mansoor Ali v. Azizul Rahman 1989 SCC OnLine Pat 411; Ravinder Singh vs. Janmeja Singh and others (2000) 8 SCC 191; Abdul Rehman v. Mst. Khatun 1984 MPWN 14; Linga Bhatta @ Thammaiah and others vs. M/s. Saravana Enterprises and another AIR 2003 Karnataka 128; Tapeshwar Missir v. Santokh Singh and another AIR 1969 Patna 299; Guna Yerrannaidu v. Guna Venkanna AIR 2002 Andhra Pradesh 37; Parvati Bai and another v. Ayodhia Prasad Jain 1985 MPLJ 703 and State of M.P. and others v. Mathura Prasad Sharma 1997(2) Vidhi Bhasvar 175. With these submissions, he prays for allowing the first appeal and prays for setting aside the impugned judgment & decree.

8. Learned counsel appearing for the respondent 1/plaintiff supports the impugned judgment and decree passed by trial Court and prays for dismissal of first appeal with the further contentions that the defendant 1- Mohan Prasad was well aware of the execution proceedings and with his

consent, compromise (Ex.P/1) was recorded and order thereon was passed by Executing Court on 16.09.1991 (Ex.P/2). As the defendant 1 failed to perform self-imposed conditions mentioned in the order dtd.16.09.1991 (Ex.P/2), therefore, Executing Court rightly executed sale deed on 23.08.1995 (Ex.P/3) in favour of plaintiff. He further submits that despite knowledge of the said three documents (Ex.P/1 to P/3), neither the defendant 1 nor defendant 2 had challenged the same, before any Court or by way of filing counter claim in the instant civil suit. With these submissions, he prays for dismissal of the first appeal.

9. Heard learned counsel for the parties and perused the record.

10. Following points for determination are arising in the instant first appeal :-

(a) Whether in pursuance of Order dtd.16.09.1991 (Ex.P/2), Executing Court was competent to execute sale deed dtd.23.08.1995 (Ex.P/3) in favour of the plaintiff ?

(b) Whether in absence of any payment towards agreed amount of Rs.15,000/- in two installments, the decree for recovery of money could be said to have been adjusted ?

(c) Whether after getting recorded compromise during execution of money decree, the act of transfer of land area 4 acres by defendant 1-Mohan Prasad in favour of defendant 2-Dinesh Kumar Pathak, could be said to be legal or it is fraud upon the Court ?

11. Admitted facts are that two money decrees were passed against the defendant 1-Mohan Prasad and in favour of plaintiff-Pt. Ramvilas Hundet and during execution of such decrees, compromise was arrived at between them before the Executing Court (Civil Judge Class-I, Khurai) to the effect that defendant 1 shall pay an amount of Rs.15,000/- in two installments of Rs.7,500/- each, payable in the month of June 1992 and 1993 and upon failure to pay aforesaid amount, the plaintiff would be

entitled to get executed sale deed of an area 3 acres, out of the land of defendant 1's share area 5.61 acres comprising of survey nos. 6/1, 7, 8, 180, 185, 467 or would get it recovered through auction.

12. The compromise application and order dtd.16.09.1991 have been placed on record as Ex.P/1 & P/2. Undisputedly, the defendant 1 did not pay any amount towards the agreed amount, and even prior to fixed period available up to the year 1993, the defendant 1 sold 4 acres land to defendant 2 vide regd. sale deed dtd.21.07.1992 (Ex.P/7) comprising of survey no. 4 and 36 out of area 5.61 acres land of his share i.e. out of total undivided land having an area 16.84 hectares (as is mentioned in application dtd.10.08.1991/Ex.P/1), which was not informed to the Executing Court. The act of execution of sale deed dtd.21.07.1992 (Ex.P/7) by defendant 1 in favour of defendant 2, is nothing but a fraud upon the plaintiff as well as the Court, and even if he was not aware of the Compromise (Ex.P/1 and P/2) the sale deed dtd.23.08.1995 (Ex.P/3) does not lose its efficacy.

13. As the defendant 1 within the fixed time did not pay decretal/agreed amount, resultantly Executing Court as per its Order dtd.16.09.1991 (Ex.P/2) executed sale deed on 23.08.1995 of an area 3 acres from survey nos. 6/1, 7, 8, 180, 185, 467 in favour of plaintiff on behalf of defendant 1-Mohan Prasad. Fact remains, that the compromise arrived at between the parties; order passed thereon dtd.16.09.1991; and the sale deed dtd.23.08.1995 (Ex.P-1 to P/3) have not been challenged either by defendant 1-Mohan Prasad or by defendant 2-Dinesh Kumar Pathak.

14. It is also an undisputed fact available on record that defendant 1- Mohan Prasad in derogation of an admitted compromise (Ex.P/1) and

order passed thereon dtd.16.09.1991 (Ex.P/2), executed sale deed in favour of defendant 2-Dinesh Kumar Pathak on 21.07.1992 (Ex.P/7) {registered on 14.09.1992} of an area 4 acres (i.e. 1.619 hectare) from Khasra Nos. 4 & 36 that too after the compromise dtd.16.09.1991 arrived at between the plaintiff and defendant 1.

15. It has been contended by learned counsel for the appellant/ defendant 2-Dinesh Kumar Pathak that he had no knowledge about the compromise arrived at between the plaintiff and defendant 1, therefore, he being a bonafide purchaser, his sale deed dtd.21.07.1992 (Ex.P/7) cannot be declared void as against the sale deed dtd.23.08.1995 (Ex.P/3) even to the extent of 3 acres of land covered by sale deed dtd.23.08.1995. In my considered opinion, the defendant 1 was bound by the compromise (Ex.P/1) and by the order passed thereon dtd.16.09.1991 (Ex.P/2) and upon failure to make payment of the decretal amount, trial Court rightly executed sale deed dtd.23.08.1995 (Ex.P/3) in favour of the plaintiff, which is also binding on defendant 2-Dinesh Kumar Pathak, who has stepped into the shoes of defendant 1-Mohan Prasad. It is pertinent to mention here that the Court has power and jurisdiction to undo the wrong committed before it by any of the parties to the litigation

16. Even after arguing at length, learned counsel for the appellant has not been able to point out any law that by way of compromise order (Ex.P/2), money decree was adjusted fully and was not executable or the Court had no jurisdiction to execute the decree in the light of compromise order dtd.16.09.1991. In my considered opinion, when in pursuance of adjustment of money decrees, recorded by Executing Court by way of compromise (Ex.P/1 & P/2), no amount/installment was paid by the defendant 1, then that cannot be said to be an adjustment of money decrees and as per compromise order (Ex.P/2), the Executing Court

rightly executed the sale deed dtd.23.08.1995 (Ex.P/3) in favour of the plaintiff.

17. In view of the aforesaid factual scenario and in the circumstances of the case, the judgments cited by learned counsel for the appellant are distinguishable on facts and do not help the case of the appellant.

18. Resultantly, instant first appeal fails and is hereby dismissed.

19. Miscellaneous application(s), pending if any, shall stand closed.

(DWARKA DHISH BANSAL) JUDGE

KPS

KUMARI PALLAVI SINHA 2024.10.05 12:44:59 +05'30'