Punjab-Haryana High Court
Surinder Singh ... vs Kamal Kant Jain (Deceased) ... on 7 October, 2021
CR-1651-2021 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Sr. No.205
CR-1651-2021 (O&M)
Date of decision : 07.10.2021
Surinder Singh (Deceased) through his legal heir Ms. Valerie
..... Petitioner
VERSUS
Kamal Kant Jain (Deceased) through his legal heirs and others
..... Respondents
CORAM: HON'BLE MR. JUSTICE SUDHIR MITTAL
Present:- Mr. Kapil Aggarwal, Advocate, for the petitioner.
Mr. Sanjay Kaushal, Sr. Advocate with
Mr. Sudhir Kumar, Advocate,
for the caveator-respondent No.1.
*****
SUDHIR MITTAL, J.
Facts are numerous, but issue in dispute is limited. An
application was filed before the executing Court for impleading a trust
known as Surinder Hara Foundation (hereinafter referred to as the
'Foundation') as party on the ground that the owner of the property, i.e.
late Surinder Singh Hara, had bequeathed the suit property to the Trust
through a Will. The application has been dismissed by the executing
Court and hence, the present revision petition has been filed.
A suit for specific performance of agreement to sell dated
05.06.1978 was filed by the predecessor-in-interest of the respondents.
The subject matter of the agreement was House No.6, Sector 9-A,
Chandigarh. The trial Court accepted the agreement to sell, but decreed
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the suit for alternative relief i.e. refund of twice the earnest-money.
Appeal and cross-objections were dismissed by the first appellate Court.
Regular second appeal filed by the plaintiff was dismissed by the High
Court. He then approached the Hon'ble Supreme Court of India which
issued notice on 03.11.2008. Leave to appeal was granted and S.L.P was
converted into a Civil Appeal. During its pendency, the defendant,
namely, Surinder Singh Hara passed away on 26.12.2013. Before his
death, he had executed a Will dated 18.01.2011 bequeathing the suit
property to Surinder Hara Foundation. On the basis of said Will, the
Estate Office, U.T. Chandigarh mutated the suit property in favour of the
Foundation on 15.09.2014. On 15.07.2014, one Smt. Beant Kaur
(respondent No.5) filed an application in the Supreme Court of India for
being impleaded as legal representative of the deceased defendant. The
plaintiff filed an application for impleading the Foundation as legal heir.
Both these applications were disposed of vide order dated 26.04.2017
without expressing any opinion on the inter-se claims. The Foundation as
well as Beant Kaur were impleaded as party respondents. The Civil
Appeal was allowed vide judgment dated 27.10.2017. The judgments of
the Courts below were set aside and the suit was decreed. Learned
counsel for the plaintiff offered to make a payment of Rs.10 crores in
view of efflux of time and this offer was accepted. It was observed that
possession be handed over immediately after receipt of amount of Rs.10
crores. This amount was deposited on 02.07.2018, whereafter, the
plaintiff filed application dated 13.07.2018 for a direction to the executing
Court to hand-over possession and execute a registered sale deed. This
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application was disposed of vide order dated 10.08.2018, which is
reproduced below for ready reference:-
'Heard the learned senior counsel appearing for the
parties.
I.A is disposed of stating that on the decree being
drawn up, it will be executed in accordance with law.
The amount deposited in this Court shall be sent to the
executing Court being Senior Sub-Judge, Chandigarh within
a period of four weeks from today alongwith accrued interest
thereon, if any.
M.A also stands disposed of.'
The aforementioned order shows that the plaintiff was
relegated to his remedy of execution. Consequently, execution
application dated 18.11.2018 was filed, wherein, Surinder Singh Hara-J.D
was impleaded through his legal heirs namely, Ms. Valerie, wife of late
Surinder Singh Hara (Respondent No.1-A) and Beant Kaur, daughter of
late Surinder Singh Hara (Respondent No.1-B). JD No. 1-A filed an
application dated 09.07.2021 for suitable correction of zimni orders and
for impleading the Foundation as a party. This application has been
rejected by the executing Court vide impugned order dated 28.07.2021
(Annexure P-1).
The relevant observations of executing Court are as under:-
'7. Perusal of the file shows that on 13.03.2019, Sh.
Nisheeth Bhatt, Advocate, had filed power of attorney on
behalf of JD No.1A and the said fact has been rightly
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recorded by the Ld. Predecessor of this Court that Sh.
Nisheeth Bhatt, Advocate, filed power of attorney on behalf
of JD No.1A. However, in the said zimni order appearance
of JD No.1B has been inadvertently recorded which was
rectified on the next date of hearing i.e. 19.03.2019. So, the
contention of learned counsel that his presence was wrongly
recorded in the zimni order dated 13.03.2019, is not tenable.
Further, it is the objection of learned counsel for JD No.1A
that he has filed the power of attorney on behalf of Surinder
Hara Foundation as per the Will of Late Surinder Singh Hara.
Perusal of the power of attorney filed by Sh. Nisheeth Bhatt,
Advocate on 13.03.2019 clearly reflects that he himself has
put in appearance representing JD No.1A. Now, JD No.1A
as per the execution application is Ms. Valerie w/o Late
Surinder Singh Hara, Surinder Hara Foundation. So, this
argument/objection that the zimni order dated 13.03.2019 and
19.03.2019 be corrected and title sheet may be amended for
the clear depiction of all the necessary parties, is not
maintainable in this execution petition. This Court as an
Executing Court is to execute the decree as per the order
dated 27.10.2017 and 10.08.2018 passed by the Hon'ble
Apex Court and the LRs of the deceased Surinder Singh Hara
shall step into the shoes of the seller i.e. Surinder Singh Hara.
Moreover, every application in this execution has been
moved by the Ld. Counsel representing himself on behalf of
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JD No.1A. To my opinion, this application has been moved
just to linger on the execution of this case by one reason or
the other as the Ld. Counsel for JD No.1A comes to the Court
on every hearing alongwith one or two applications. He has
also availed all his legal remedies upto Hon'ble Supreme
Court of India. The fact that Surinder Hara Foundation has
already been impleaded as a party as is clear from the
execution application. As stated above the Ld. Counsel for
JD No.1A has filed the power of attorney on behalf of JD
No.1A, which is a foundation and the foundation has rightly
been made a party and there is no need to correct any zimni
order or to amend the title of the case.'
In sum and substance, the finding of the executing Court is
that the Foundation is already a party.
Learned counsel for the petitioner has submitted that the
aforementioned finding is patently erroneous. A perusal of the execution
petition shows that Surinder Singh Hara has been impleaded through his
legal heirs, namely, wife and daughter as JD No.1-A and 1-B,
respectively. The Foundation is not a party. Being the owner of the suit
property, it is a necessary party as sale deed has to be executed on its
behalf.
On the other hand, learned senior counsel for the legal heirs
of respondent No.1-plaintiff states that 16 different applications have been
filed on behalf of JD No.1-A and 41 dates have been taken. Attempt is to
delay the proceedings on one pretext and the other. The conduct of the
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judgment debtors is not liable to be condoned and the Supreme Court has
commented upon the conduct of judgment debtors in very harsh terms in
Rahul S. Shah Vs. Jinendra Kumar Gandhi and others, 2021 SCC Online
SC 341. While decreeing the suit of the plaintiff, the Supreme Court had
observed that possession be handed over immediately on deposit of
payment. Payment was deposited on 02.07.2018, but even three years
later, decree holder has not been able to get possession. The Foundation
is a party as Ms. Valerie Jane Hara (JD-1A) is the Settler/Managing
Trustee and her address mentioned in the executing petition is Surinder
Hara Foundation, VPO-Amadalpur, Tehsil Jagadhri, District
Yamunanagar, Haryana. Under the circumstances, the executing Court
was justified in dismissing the application.
As observed hereinabove, in the executing petition, Surinder
Singh Hara (deceased-JD) has been impleaded through his legal heirs,
namely, Ms. Valerie Jane Hara and Beant Kaur. I have been informed
that Beant Kaur has been proceeded against ex parte before the executing
Court. Thus, it is evident that she has no interest in the suit property and
is not contesting Will dated 18.01.2011 executed by late Surinder Singh
Hara. In her absence only JD No.1-A is on record, who is Valerie Jane
Hara. Thus, executing Court has committed a patent error of law by
holding that the Foundation was a party. The observation of the
executing Court that there is a deliberate intent to delay the execution may
be justified, but that does not furnish a ground for passing an order
contrary to law.
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Basic argument raised on behalf of the decree holder is that
the conduct of the judgment debtor deserves to be deprecated. Keeping in
view, the delay caused by the judgment debtor, the impugned order
should not be interfered with. In my opinion, the decree holder should
have been better advised not to contest the application as the same has
contributed to the delay. The judgment in Rahul S. Shah's case (supra)
does not aid the decree holders-respondents in any manner, because the
said judgment is not an authority for deciding a case wrongly, if the
judgment debtor adopts delaying tactics.
For the aforementioned reasons, the revision petition is
allowed and impugned order dated 28.07.2021 (Annexure P-1) is set
aside.
The Foundation is directed to be impleaded as a party. The
decree holder may file a suitable application to amend the memo of
parties.
(SUDHIR MITTAL)
JUDGE
07.10.2021
Ramandeep Singh
Whether speaking / reasoned Yes / No
Whether Reportable Yes/ No
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