Hemant Kumar vs Parveen Tyagi
2024 Latest Caselaw 15921 P&H

Punjab-Haryana High Court

Hemant Kumar vs Parveen Tyagi on 2 September, 2024

Author: Vikas Bahl

Bench: Vikas Bahl

                                Neutral Citation No:=2024:PHHC:113757




CR-4987-2024(O&M)                       1

      IN THE HIGH COURT OF PUNJAB & HARYANA AT
                   CHANDIGARH
                      ***

                                                CR-4987-2024(O&M)
                                                Date of decision : 02.09.2024

Hemant Kumar

                                                     ... Petitioner

                   Versus

Parveen Tyagi

                                                     ... Respondent

CORAM:      HON'BLE MR.JUSTICE VIKAS BAHL

Present:    Mr. R.K.Chandana, Advocate
            for the petitioner.

VIKAS BAHL, J.(ORAL)

1. This is a Civil Revision Petition filed under Article 227 of the

Constitution of India praying for setting aside the impugned order dated

17.07.2024 (Annexure P-8) passed by the Civil Judge (Senior Division),

Faridabad whereby the warrants of possession have been issued and the

concerned SHO has been directed to provide ample police force to the

bailiff for smooth execution of the warrants of possession for 03.08.2024.

2. The present case is a classic case where the petitioner has done

every act to delay the execution proceedings.

3. Brief facts of the present case are that the respondent had filed

a suit for possession by way of specific performance of agreement to sell

dated 22.05.2018 with consequential relief of prohibitory injunction against

the present petitioner on the plea that there was an agreement to sell dated

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22.05.2018 with respect to the property in question and the respondent had

paid an amount of Rs.23 lacs to the petitioner as earnest money. On

30.07.2022, the said suit for specific performance was decreed and the copy

of the said judgment and decree has been annexed with the present petition

as Annexure P-2. In paragraph 2 of the said judgment, it was noticed by the

trial Court that the present petitioner had put in appearance in the case and

thereafter on four dates had continuously assured the Court that he would

execute and register the sale deed in favour of the plaintiff and had further

admitted the factum of payment and that thereafter on 15.12.2021, the

petitioner did not turn up and thus, was proceeded against ex-parte.

Paragraph 2 of the said judgment is reproduced hereinbelow:-

"5. It is relevant to mention that in the present case, defendant put appearance on 09.08.2019. On 10.10.2019, 12.12.2019, 19.2.2021 and 19.10.2021 continuously defendant assured the Court that he would execute and register the sale deed in favour of plaintiff. He also admitted the factum of payment as alleged by plaintiff. Thereafter, on 15.12.2021 defendant did not turn up and ultimately, he was proceeded against exparte."

4. The zimni orders of the above said dates have not been placed

on record to contradict the said observations. The trial Court thereafter took

into consideration the agreement to sell which was duly exhibited as Ex.P1

as well as receipts of payment as Ex.P2 to P7 and other documents as well

as the oral evidence and decreed the suit of the respondent.

5. An application under Order 9 Rule 13 CPC (Annexure P-4) was

filed by the petitioner on 29.05.2024 after a delay of more than 1 year and

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10 months from the passing of the judgment and decree dated 30.07.2022.

The said fact is apparent from the order dated 29.05.2024 (Annexure P-5).

A perusal of the said application dated 29.05.2024, which has been annexed

as Annexure P-4, would show that in paragraph 3, the petitioner had

admitted the fact that the petitioner had received the summons of the case.

6. In the meantime, in the execution proceedings which were

pending, vide order dated 05.12.2022, the petitioner was proceeded against

ex-parte, which fact is apparent from the order dated 17.07.2024 (Annexure

P-7), although the zimni order dated 05.12.2022 and other zimni orders

have not been annexed along with the present petition. Apparently the

petitioner had filed an application for setting aside the ex-parte order dated

05.12.2022 vide which the petitioner had been proceeded against ex-parte in

the execution proceedings and that application was dismissed vide order

dated 17.07.2024 (Annexure P-7) and the execution proceedings were

ordered to continue. The said order dated 17.07.2024 (Annxure P-7) has not

been challenged by the petitioner in the present case and is not stated to be

under challenge in any other case as well. Since the petitioner had been

proceeded against ex-parte in the execution proceedings and there was no

stay granted with respect to the judgment and decree dated 30.07.2022, thus,

by virtue of the impugned order, the Civil Judge (Senior Division),

Faridabad had issued fresh warrants of possession with respect to the suit

property and had also permitted the bailiff to break open the lock and had

further directed that for giving possession, the SHO concerned was directed

to provide ample police force to the bailiff for smooth execution of warrants

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of possession on 03.08.2024. It would be relevant to note that the petitioner

during the pendency of the present petition had sold the property in question

so as to create further hurdles in the path of the decree holder. A perusal of

the order dated 17.07.2024 (Annexure P-6) would show that the objections

raised by the lis pendens purchasers were also dismissed and it was

observed that the sale in their favour was hit by Section 52 of the Transfer

of Property Act and that there was clear violation of the stay order dated

14.08.2019 which had been duly entered in the office of the Sub Registrar,

Badkhal. Thus, every effort was made by the petitioner to defeat the rights

of the respondent/decree holder.

7. Learned counsel for the petitioner has submitted that in the

present case, the respondent is a practising lawyer and the agreement, which

was entered into between the parties, was with respect to a loan transaction

and the price mentioned in the same was far less than the actual value of the

property which is the subject matter of the agreement. It is submitted that in

case an opportunity is granted to the petitioner to file his written statement,

then the petitioner would be able to prove that the suit for specific

performance does not deserve to be decreed moreso with respect to the

relief of execution of the sale deed. It is submitted that an application under

Order 9 Rule 13 CPC of the petitioner is also pending and thus, it is prayed

that the order, vide which the warrants of possession has been issued, be set

aside.

8. This Court has heard the learned counsel for the petitioner and

has perused the paper book.

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9. It is not in dispute that the suit was filed by the respondent for

possession by way of specific performance in the year 2019 and the present

petitioner had appeared and had sought five adjournments and as per

paragraph 2 of the judgment dated 30.07.2022 had undertaken to execute

the registered sale deed and thereafter had not appeared and was proceeded

against ex-parte on 15.12.2021. An application under Order 9 Rule 13 CPC

was filed after a period of 1 year and 10 months from the date of the ex-

parte judgment and decree dated 30.07.2022 and the said application is

annexed as Annexure P4 and a perusal of the same would show that it was

admitted by the petitioner that he had received summons of the case. Even

in the execution proceedings, the petitioner was proceeded against ex-parte

vide order dated 05.12.2022 and an application was filed for setting aside

the ex-parte order dated 05.12.2022 before the executing Court which was

dismissed vide order dated 17.07.2024 (Annexure P-7). Learned counsel for

the petitioner has fairly submitted that the said order is not the subject

matter of challenge in the present lis.

10. Thus, once the petitioner was proceeded against ex-parte in the

execution proceedings and his application for setting aside the said ex-parte

order had been dismissed, thus, it was necessary for the executing Court to

proceed further and to execute the judgment and decree dated 30.07.2022

moreso when there was no stay order operating against the judgment and

decree dated 30.07.2022. The petitioner has made every effort to delay the

execution of the said judgment and decree dated 30.07.2022 which is

apparent from the facts which have been stated hereinabove.

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11 Keeping in view the above said facts and circumstances, the

order dated 17.07.2024 (Annexure P-8), vide which the warrants of

possession have been issued and police help has also been ordered for

taking possession of the suit property, is in accordance with law and

deserves to be upheld. The present petition being meritless and having been

filed only to delay the proceedings, deserves to be dismissed and is

accordingly dismissed.

12. Pending application, if any, stands disposed of in view of the

above said order.

(VIKAS BAHL) JUDGE

September 02, 2024.

Davinder Kumar

                 Whether speaking / reasoned                         Yes/No
                 Whether reportable                                  Yes/No




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