Rajasthan High Court
Raj Kumar Atri S/O Shri Pyare Lal ... vs Raghuveer Singh S/O Shri Pyare Lal ... on 10 October, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Revision Petition No. 202/2022
1. Raj Kumar Atri S/o Shri Pyare Lal Atri, Aged About 65
Years, Resident Of Village And Post Berahkurd, Tehsil
And District Jind (Haryana) At Present Residing At
Village Ren, Tehsil Hindoli, District Bundi (Rajasthan).
2. Vinod Kumar Atri S/o Shri Jagdish Chand Atri, Aged
About 50 Years, Resident Of Village And Post Berahkurd,
Tehsil And District Jind (Haryana) At Present Residing At
Village Ren, Tehsil Hindoli, District Bundi (Rajasthan).
----Petitioners
Versus
1. Raghuveer Singh S/o Shri Pyare Lal Atri, Resident Of
Village And Post Berahkurd, Tehsil And District Jind
(Haryana) At Present Residing At Village Ren, Tehsil
Hindoli, District Bundi (Rajasthan).
------Respondent/Plaintiff/Decree-holder
2. Bhanwar Lal Mundra S/o Fateh Chand, Resident Of
Village Ren, Tehsil Hindoli, District Bundi (Rajasthan)
And Siligadhi Darjeeling, District Darjeeling (West
Bengal) (Deceased Through Legal Representatives -
2/1. Smt. Sharda Devi W/o Shri Bhanwar Lal Mundra,
Resident Of 2/111, Arjun Street, Viswas Nagar,
Shahdara, Delhi-32.
2/2. Virendra Mundra S/o Shri Bhanwar Lal Mundra, Resident
Of 2/111, Arjun Street, Viswas Nagar, Shahdara, Delhi-
32.
2/3. Vijendra Mundra S/o Shri Bhanwar Lal Mundra, Resident
Of Vijay Paper Products, Room No. S-6, Second Floor, 4-
Balavdas Street, Kolkata-7.
2/4. Devkichandak D/o Shri Bhanwar Lal Mundra W/o Shri
Laxmi Narainchandak, Resident Of I-702, Shakti Kunj
Apartment, Fortis Hospital, Sector-62, Noida-201301
2/5. Maya Jajoo D/o Shri Bhanwar Lal Mundra W/o Shri
Jaiprakash Jajoo, Resident Of B-109, Vivek Vihar,
Phase-I, Delhi-10095.
2/6. Rakhi Rathi D/o Shri Bhanwar Lal Mundra, W/o Shri Anil
Rathi, Resident Of 71, Forth Cross Second And Main
Bemallayot, Viswas Nagar, Banglore-79.
2/7. SampatPeriwal D/o Shri Bhanwar Lal Mundra,
(Deceased) Through Legal Representatives-
2/7/1. Nirmaliperiwal S/o SampatPeriwal, Resident Of National
Bearing Corporation, A.t. Road, Teen Sukhia, Assam.
2/7/2. Gaurav Periwal S/o Shri SampatPeriwal, Resident Of
National Bearing Corporation, A.t. Road, Teen Sukhia,
Assam.
2/7/3. Kusum Maloo D/o Shri SampatPeriwal, Resident Of
National Bearing Corporation, A.t. Road, Teen Sukhia,
(2 of 23) [CR-202/2022]
Assam.
3. Nagarmal S/o Shri Rewatmal, Resident Of Baharlibundi,
Near Dhan Mandi Dharmshala, Through Power Of
Attorney Shri Vinod Kumar Mundra S/o Shri Narayan
Chand, Resident Of Mundra Bhawan, Khoja Gate Road,
Bundi, District Bundi, At Present Resident At Cisf, Link
Road, Yes Bank, Devli, District Tonk (Rajasthan).
----Respondents/Defendants/Judgment Debtors
Connected With
S.B. Civil Revision Petition No. 203/2022
1. Raj Kumar Atri S/o Shri Pyare Lal Atri, Aged About 65
Years, Resident Of Village And Post Berahkurd, Tehsil
And District Jind (Haryana) At Present Residing At
Village Ren, Tehsil Hindoli, District Bundi (Rajasthan).
2. Vinod Kumar Atri S/o Shri Jagdish Chand Atri, Aged
About 50 Years, Resident Of Village And Post Berahkurd,
Tehsil And District Jind (Haryana) At Present Residing At
Village Ren, Tehsil Hindoli, District Bundi (Rajasthan).
----Petitioners
Versus
1. Raghuveer Singh S/o Shri Pyare Lal Atri, Resident Of
Village And Post Berahkurd, Tehsil And District Jind
(Haryana) At Present Residing At Village Ren, Tehsil
Hindoli, District Bundi (Rajasthan).
---Respondent/Plaintiff/Decree-holder
2. Jethmal S/o Shri Lal Chand, Resident Of Village Ren,
Tehsil Hindoli, District Bundi (Rajasthan). And 132,
Cotton Street, Kolkata (West Bengal) (Deceased
Through Legal Representatives)-
2/1. Bhanwar Lal S/o Shri Jethmal, Resident Of Village Kaloo,
Tehsil Lunkaransar, District Bikaner (Raj.)
2/2. Jugal Prasad S/o Shri Jethmal, Resident Of Village Kaloo,
Tehsil Lunkaransar, District Bikaner (Raj.)
2/3. Ghanshyam S/o Shri Jethmal, Resident Of Village Kaloo,
Tehsil Lunkaransar, District Bikaner (Raj.)
2/4. Gyatri D/o Shri Jethmal, Resident Of Village Kaloo, Tehsil
Lunkaransar, District Bikaner (Raj.)
2/5. Damyanti D/o Shri Jethmal, Resident Of Village Kaloo,
Tehsil Lunkaransar, District Bikaner (Raj.)
2/6. Kusum @ Anusuya D/o Shri Jethmal, Resident Of Village
Kaloo, Tehsil Lunkaransar, District Bikaner (Raj.)
2/7. Sarita D/o Shri Jethmal, Resident Of Village Kaloo, Tehsil
Lunkaransar, District Bikaner (Raj.)
----Proforma Respondents/Defendants/Judgment Debtors
(3 of 23) [CR-202/2022]
For Petitioner(s) : Mr. Abhinav Sharma
For Respondent(s) : Mr. Rajendra Prasad, Sr. Advocate
assisted by Mr. Gautam Bhadadra
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
RESERVED ON: 29th September, 2022
PRONOUNCED ON: 10th October,2022
BY THIS COURT
1. By way of these two revision petitions, preferred under
Section 115 of Code of Civil Procedure, petitioners have
challenged the impugned Orders dated 25.08.2022, passed in Civil
Misc. Applications No.18/2022 & 17/2022 by the Court of
Additional District Judge No.1, Bundi (Rajasthan), dismissing their
two separate applications filed under Order 21 Rule 90 CPC. Since
the points involved in both revision petitions are substantially
similar and petitioners & respondents No.1 are same parties,
therefore, with consent of counsel for both parties, both petitions
have been heard together and would stand decided by this
common Order. Respondent No.1-plaintiff-decree holder has put in
appearance as caveator.
2. Heard learned counsel for both parties, perused the
impugned orders and material placed before this Court.
3. The relevant facts for deciding these petitions, in nut shell,
are that respondent No.1-plaintiff instituted two separate civil
suits for specific performance of two agreements dated 30.8.1991
against other respondents No.2 & 3. Both agreements were
executed solely in favour of respondent No.1-plaintiff. In civil suit
No.23/2000, plaintiff averred in para Nos. 2, 5 & 6 of the plaint
(4 of 23) [CR-202/2022]
that defendants agreed to sale their 2/3 share in agricultural lands
of khasra No.63, at Village Ren, Tehsil Hindoli, District Bundi, to
plaintiff and other 8 persons, however, agreement has been
executed in name of plaintiff alone and later on, after payment of
substantive amount against agreed sale consideration, in
furtherance to the agreement to sale dated 30.8.1991, defendants
delivered possession of 278 Bighas agricultural land to plaintiff on
31.1.1992 and since then plaintiff and other eight persons, named
in schedule 'B' appended with plaint have been in continuous
cultivatory possession. In the Schedule 'B', appended with plaint,
names of nine persons including plaintiff- Raghuveer Singh and
both petitioners Raj Kumar and Vinod Kumar are mentioned. It
was averred that land was agreed to be purchased jointly by
plaintiff and other eight persons. Plaintiff averred in the plaint
that, in pursuance of agreement in question, sale deed(s) was/
were to be executed and registered in the name of plaintiff and
other eight persons jointly or severally according to instructions of
plaintiff and prayer was made in the plaint in the similar tune. This
civil suit was decreed in favour of respondent No.1-plaintiff vide
judgment dated 16.1.2004 in the following terms:
"अतः वादी का प्रततवादीगण क के तवरुद्ध अध अन्ध अनुबन्ध कुबन्ध की तवकी विश की विशिष्ठ अध अन्ध अनुष्ठ अनुपालध अना का
वाद इस प्रकार सव्यय डय डििकुबन्ध की तकया या जाता ता हाता है तक वादी अध अन्ध अनुबन्ध प्रद की विशिन -1 क के
प्रततफल कुबन्ध की की विशि केष राकी विश की विशि 444500 + 355000 क्ध अनुल 799500 रुष्ठ अनुपय के और साम्प और
रजया जससी ख खरन कुबन्ध की राकी विश की विशि प्रततवादीगण कादीगण को ण को भ्ध अनुगताध अन करध अन के ष्ठ अनुपर अथवा अथवा नायालय
में या जमेा करवाध अन के ष्ठ अनुपर प्रततवादीगण गामे र केण तता हसील ल हता हहिनादीगण कोली में तवें विसमें विस्थित
खतखतौध अनी स संखा 63 क के अष्ठ अनुपध अन के ल हता हस के कुबन्ध की 2/3 ण को भाग कुबन्ध की 278 बीघा कृषष ण को भूषमे
जया जसका तववरण वादष्ठ अनुपत्र क के साथ स संलग्न ष्ठ अनुप पररकी विश की विशिष्ठ "अ" में अ संतकत ता हाता है वादी एव सं
वादी द्ारा तध अनदर्देकी विश की विशित 8 अअथवा न व्यषव्यक्तिययक्तियों जया जध अनका उनका उल केख ष्ठ अनुप पररकी विश की विशिष्ठ "ब में अ संतकत
ता हाता है क के ष्ठ अनुपक्ष में की विशिामेलाती तखतौर ष्ठ अनुपर या वादी द्ारा डदय के गय के तध अनदर्दे की विशि क के अध अन्ध अनुसार -
(5 of 23) [CR-202/2022]
अलग अध अन्ध अनुबन्ध ष्ठ अनुपत्र -1 कुबन्ध की तवकी विश की विशिष्ठ अध अन्ध अनुष्ठ अनुपालध अना करत के हुए दादीगण को मेाता ह में तविकय ष्ठ अनुपत्र
ष्ठ अनुप संया जीकृत करवा द के । प्रततवादीगण द्ारा ऐसा ध अनता हऐसा नहीं करध अन के ष्ठ अनुपर वादी इस
अथवा नायलय क के मेाध्यमे स के उव्यक्ति ण को भूषमे का तविकय ष्ठ अनुपत्र ष्ठ अनुप संया जीकृत करवाध अन के का
अधिकारी ता हादीगण कोगा । आज्ञषञ तध अनषमेनत ता हादीगण को ।"
4. In Civil Suit No.22/2000, plaintiff averred that defendant
No.1 through his power of attorney holder defendant No.2, agreed
to sale his Khatedari land of 46 Bighas 19 Biswas at village Ren,
Tehsil Hindoli, District Bundi to plaintiff and executed agreement
dated 30.8.1991, after receiving part of sale consideration and
later, on payment of substantive sale consideration, possession of
land was delivered to plaintiff on 31.01.1992, which is in
continuous possession of plaintiff. In this suit, there is no
reference of persons other than plaintiff in whose favour sale deed
was to be executed, however, in the Court statements of plaintiff
Raghuveer Singh (Pw.1), recorded on 8.5.2001 plaintiff has stated
in his cross-examination that plaintiff has agreed to purchase land
in question through agreement Ex.1 for and on behalf of other ten
persons and while disclosing the name of these persons, both
petitioners Raj Kumar Atri and Vinod Kumar Atri were named by
plaintiff. Plaintiff also stated that plaintiff purchased land for such
persons and from their money, on their behalf. This civil suit has
been decreed in favour of respondent No.1-plaintiff vide judgment
dated 19.1.2004 in the following terms:
"फलत: वादी क के ष्ठ अनुपक्ष में एव सं प्रततवादीगण क के तवरूद्ध वादी का अध अन्ध अनुब संि कुबन्ध की
तवकी विश की विशिष्ट अध अन्ध अनुष्ठ अनुपालध अना का यता ह वाद सव्यय इस प्रकार स के डय डििकुबन्ध की तकया या जाता
ता हाता है तक अध अन्ध अनुब संि-ष्ठ अनुपत्र प्रद की विशि-न 1 में अ संतकत प्रततफल कुबन्ध की की विशि केष राकी विश की विशि 130240/-
रूष्ठ अनुपय के, साम्प एव सं रजया जससी का ख खररी का खर्चा वादी प्रततवादीगण कादीगण को प्रदाध अन कर द के
अथवा अथवा नायालय में या जमेा करा द के तादीगण को प्रततवादीगण दादीगण को मेाता ह कुबन्ध की अवधि क के
अन्दर ष्ठ अनुप पररकी विश की विशिष्ट में वजणनत उव्यक्ति कृषष ण को भूषमे 46 बीघा 19 तबसा का तविकय-
(6 of 23) [CR-202/2022]
ष्ठ अनुपत्र वादी अथवा वादी द्ारा बताय के गय के व्यषव्यक्तिययक्तियों क के ष्ठ अनुपक्ष में ष्ठ अनुप संया जीकृत
करवा द के प्रततवादीगण द्ारा उव्यक्ति कृषष ण को भूषमे का तविकय-ष्ठ अनुपत्र ष्ठ अनुप संया जीकृत ध अनता हऐसा नहीं
करवाध अन के कुबन्ध की सूरत में वादी इस अथवा नायालय क के मेाध्यमे स के तविकय-ष्ठ अनुपत्र
ष्ठ अनुप संया जीकृत करवाध अन के का अधिकारी ता हादीगण कोगा । आज्ञषञ तध अनषमेनत ता हादीगण को ।"
5. It has transpired that respondents-defendants, challenged
both judgments and decree for specific performance, by way of
filing two separate civil regular first appeals No.254/2004 and
258/2004. During course of first appeals, an agreement dated
25.6.2012 was entered into between the parties to appeals and in
respect of both civil suits No.22/2000 and 23/2000, and first
appeals were dismissed as withdrawn on 22.8.2012, in view of the
compromise. Copy of agreement dated 25.6.2012 has been placed
on record by the respondent No.1 and whereupon, it has been
contended that petitioner No.2 Vinod Kumar Atri also made his
signature as witness, acknowledging the agreement. It may be
noticed that petitioners have not given any reference of this
agreement dated 25.06.2012 in their revision petitions nor in their
applications under Order 21 Rule 90 CPC filed before the Executing
Court.
6. It has been averred by petitioners that respondent No.1-
plaintiff proceeded for execution of judgments and decree for
specific performance dated 16.1.2004 and 19.1.2004 and
submitted applications under Order 21 Rule 34 CPC to get
execution of the sale deeds but plaintiff, with dishonest intention
and to betray petitioners, prayed in civil suit No.22/2000 to
execute the sale deed in favour of plaintiff Raghuveer Singh and
his wife Smt. Saroj Kumari and in civil suit No.23/2000 prayed to
execute sale deeds jointly in favour of plaintiff Raghuveer Singh,
his daughter Annapurna Sharma, Son Birendra Vikram and wife
(7 of 23) [CR-202/2022]
Smt. Saroj Kumari. Plaintiff did not disclose name of both the
petitioners and other persons to get sale deed registered in their
favour, for whom he has averred and admitted in the plaint as well
as in his evidence to purchase lands in question from their money.
Name of plaintiff's wife, son and daughter are not included in
Schedule 'B' appended with the suit No.23/2000 nor included in
names of persons stated by plaintiff in his statements in suit
No.22/2000. Thus, both sale deeds, executed in favour of persons,
other than named in Schedule 'B', and excluding petitioners are
void.
7. It has been stated that though notices of execution petitions
were issued to respondents-judgment debtors but despite service
of notices they never appeared. Thereafter, respondent No.1-
plaintiff has submitted draft sale deeds before the Executing Court
and the Executing Court has permitted the plaintiff to deposit the
balance sale consideration in the Court in terms of the decree and
after approval of the draft of sale deeds submitted by plaintiff
has ordered to execute and register the sale deed, through Court
by and on behalf of respondents-judgment debtors. Accordingly,
sale deed dated 17.2.2021 has been executed and registered in
execution of decree dated 16.1.2004 passed in civil suit
No.23/2000 by the Executing Court, jointly in favour of
respondent No.1 plaintiff- Raghuveer Singh, his wife Saroj Kumari,
Son Birendra Vikram and daughter Annapurna Sharma, and sale
deed dated 1.3.2021 has been executed and registered in
execution of the decree dated 19.1.2004 passed in civil suit
No.22/2000 by the Executing Court, jointly in favour of
respondent No.1-plaintiff Raghuveer Singh and his wife Smt. Saroj
Kumari. The copy of both registered sale deeds have been placed
(8 of 23) [CR-202/2022]
on record. The possession of land in question had already been
obtained as alleged by plaintiff, even before filing of suits and
therefore, after execution and registration of sale deeds, the
execution petitions were finally disposed of on 11.9.2021 in full
satisfaction of judgments and decree.
8. Thereafter, both petitioners moved two separate applications
in both execution petitions on 4.2.2022 invoking provisions of
Section 151 CPC and Order 21 Rule 90 CPC. In both applications,
petitioners have stated that respondent No.1-plaintiff Raghuveer
Singh is elder brother of petitioner No.1 Raj Kumar Atri and is
uncle of petitioner No.2 Vinod Kumar Atri and since he was the
eldest member of family, therefore, both suits for specific
performance were filed by plaintiff for and on behalf of petitioners.
It has been stated that part of sale consideration was paid by
petitioners, and petitioners also have the possession over part of
lands in question as admitted by the plaintiff also in plaint and in
his evidence. It has been further stated that but the plaintiff has
committed fraud with the petitioners as also with the Court and
instead of getting execution of sale deeds in favour of persons
named in Schedule 'B' and named by plaintiff in his statements,
he got executed and registered sale deeds in his own favour along
with his wife, son and daughter, whose name were not included in
the list of other eight persons. It has been stated that by
excluding petitioners, while getting sale deeds registered in
execution proceedings, the plaintiff has betrayed petitioners. It
has been stated that the execution of both sale deeds is not
according to terms of judgments and decree and the respondent
No.1-plaintiff got executed both registered sale deeds by playing
fraud with the Court as well as with petitioners, therefore, both
(9 of 23) [CR-202/2022]
sale deeds be treated as void and by recalling the same, sale
deeds be ordered to be executed and registered according to
terms of judgments and decree. For ready reference, the prayer
made by petitioners in their application under Order 21 Rule 90
CPC is being reproduced hereunder:
"अतः शीमेाध अनान् स के तध अनव केदध अन ता हाता है तक इया जराय कुबन्ध की ष्ठ अनुपत्रावली एव सं वाद कुबन्ध की ष्ठ अनुपत्रावली
तलब कुबन्ध की या जा कर डय डिकुबन्ध कीदार रघ्ध अनुवीर धससिंता ह द्ारा प्र प्रसातवत द प्रसाव केया ज जया जसमें
सरादीगण कोया ज क्ध अनुमेारी का ध अनामे ण को भी दया जन कर ब के खराध अनध अनामेा ष्ठ अनुप संया जीकृत करवा डदया गया
ता हाता है। जया जस के पररकाल तकया या जाकर प्रण को भाव की विशिूअथवा न मेाध अनत के हुऐ डय डिकुबन्ध की कुबन्ध की ष्ठ अनुपालध अना में
डय डिकुबन्ध की अध अन्ध अनुसार द प्रसाव केया ज तध अनिषा डदत एव सं ष्ठ अनुप संया जीकृत करवाया या जाव के ।"
9. Respondent No.1-plaintiff filed reply to both applications filed
by petitioners under Section 151 and Order 21 Rule 90 and
contested.
10. Learned Executing Court, vide two separate orders passed on
25.8.2022, has dismissed both applications, hence, thereagainst
both these revision petitions have been preferred by petitioners.
11. Learned counsel for petitioners, Mr. Abhinav Sharma, has
vehemently argued following points:
(i) Respondent No.1-plaintiff was bound to get execute and
register the sale deeds in execution of judgments and decree for
specific performance, in favour of persons including plaintiff and
petitioners who were named in the Schedule 'B' appended with the
suit No.23/2000 as named by plaintiff in his statements in civil
suit No.22/2000. However, plaintiff has got executed both sale
deeds, excluding petitioners, only in favour of the plaintiff himself
along with his wife, son and daughter. Once, plaintiff himself
admitted in plaint and his evidence that part of sale consideration
(10 of 23) [CR-202/2022]
to purchase land in question was received from petitioners and
other persons and then same was paid to the vendors defendants
and he also admitted to enter into agreements to purchase these
land for himself and eight other persons, of which names were
mentioned and disclosed in Schedule 'B' of civil suit No.23/2000
and in statements of PW.1 plaintiff in civil suit No.22/2000 that
after obtaining possession of land in question, plaintiff and other
persons have been in continuous possession of land in question,
but, while getting execution of sale deeds by respondent No.1
plaintiff decree holder, the name of petitioners have been
excluded, and therefore, execution of such both sale deeds is not
only contrary to terms of the decree but also a fraud with
petitioners as also with the court.
(ii) Executing Court cannot go beyond terms of decree but in the
present case, sale deeds in question have been executed by the
Executing court, beyond the terms of decree, hence, both sale
deeds are void.
(iii) Procedure envisaged under Order 21 Rule 34 CPC in respect
of decree for execution of document is mandatory but same has
not been adhered to by the Executing Court and therefore,
execution of both sale deeds stands illegal as such both sale deeds
be treated as void.
(iv) Respondent No.1-plaintiff has got executed both sale deeds
with dishonest intention by playing fraud with the Court as well as
with petitioners.
12. In support of aforesaid contentions, counsel for petitioners
has placed reliance upon following judgments passed in cases of:
(11 of 23) [CR-202/2022]
Rajbir Vs. Suraj Bhan [(2022) 5 SCALE 321];
V. Ramaswami Aiyengar Vs. T.N.V. Kailasa Thevar [AIR
1951 SC 189];
State of M.P. Vs. Mangilal Sharma [1998 AIR SCW
446];
Rajasthan Financial Corporation Vs. M/s Man
Industrial Corporation Ltd. [AIR 2003 SC 4273] and
Brij Mohan Das Vs. Mt. Piari [AIR 1937 ALLAHABAD
567].
13. Per contra, learned Senior Counsel, Mr. Rajendra Prasad
Sharma, appearing for respondent No.1-plaintiff decree holder
countered arguments of counsel for petitioners and have urged
following points before this Court:
(i) Application under Order 21 Rule 90 CPC is not maintainable
as it is not a case where any property has been sold by way of
auction, in execution proceedings, to realize fruits of the decree
and Rule 90 of Order 21 deals with cases of setting aside auction
sale on ground of material irregularity or fraud in publishing or
conducting such sale. Further invocation of powers of court under
Section 151 CPC is also not permissible in facts and circumstances
of the present case, as alleged by petitioners.
(ii) Both agreements dated 30.8.1991, through which
respondent No.1-plaintiff agreed to purchase land in question
were admittedly executed in the name of plaintiff Raghuveer Singh
alone, and he has paid entire sale consideration to vendors,
therefore, any contention of plaintiff in the plaint and his
statements before the trial court, that land in question was
(12 of 23) [CR-202/2022]
purchased by plaintiff, for and on behalf of other eight persons, is
against the law and hit by the Prohibition of Benami Property
Transactions Act, 1988.
(iii) After execution of both agreements dated 30.8.1991 on the
basis of which both civil suits for specific performance were
decreed solely in favour of plaintiff, when respondents-judgment
debtors preferred first appeal thereagainst, a fresh agreement
dated 25.6.2012 was executed between the parties and in that
agreement, petitioner No.2 Vinod Kumar Atri also made his
signature as witness. Thus, subsequent to agreements dated
30.8.1991, a novation of agreements has arrived at, which is well
within the knowledge of petitioners. Petitioners have concealed
this agreement from this Court as also while moving applications
under Order 21 Rule 90 CPC and Section 151 CPC before the
Executing Court, therefore, objections raised by petitioners are
neither bona fide and fair nor in the light of such subsequent facts.
Therefore, execution of sale deeds, got executed by plaintiff in his
favour along with his wife, son and daughter cannot be held to be
beyond the terms of decree.
(iv) Petitioners have no locus standi to raise objection in respect
of Order 21 Rule 34 CPC as, the provision is for the benefit of
judgment debtor(s). Further there is no breach of procedure as
well. In the present case, notice of execution petitions were issued
to judgment debtors but despite service of notices when judgment
debtors did not turn up to accept the remaining sale consideration
and to execute and register sale deeds in compliance of decree,
therefore, the Executing Court proceeded to direct the plaintiff to
deposit remaining sale consideration in the Court and to execute
(13 of 23) [CR-202/2022]
and register the sale deeds on behalf of the judgment debtors,
therefore, there is no violation of procedure as envisaged under
Order 21 Rule 34 CPC, while permitting execution of both sale
deeds, by the court for and on behalf of judgment debtors.
(v) Learned counsel has also pointed out that objections filed by
petitioners invoking provisions of Section 151 CPC and Order 21
Rule 90 may not be treated as objections under Section 47 CPC.
The petitioners were neither party in the suit proceedings nor in
the original agreements dated 30.08.1991, and therefore, they
are not entitled to invoke jurisdiction of Court, under Section 47
CPC as well against the judgments and decree, more particularly,
after execution petitions have been decided and disposed of finally
in full satisfaction of judgments and decree. He has pointed out
that the Executing Court, while dismissing their applications vide
impugned order dated 25.8.2022 has already observed that
petitioners, at the most may institute a fresh civil suit for their
grievances, if any.
14. Heard. Considered.
15. At the outset, this Court has noticed from the record that the
petitioners have invoked the jurisdiction of the executing court
Under Order 21 Rule 90 CPC read with Section 151 CPC for
seeking declaration of two registered sale deeds dated 17.02.2021
and 01.03.2021 as null and void.
16. Both these sale deeds have not been executed by the
executing court, in the process of any sale of the immovable
property by way of auction in order to realize fruits of any decree
of the civil court, rather these sale deeds have been executed and
registered by the executing court, during course of execution
(14 of 23) [CR-202/2022]
proceedings of the decree for specific performance, by and on
behalf of the judgment debtors and in favour of plaintiff-decree
holder along with the name of other persons as suggested by the
decree holder. As per record, it stands clear that Respondent
No.1-plaintiff had instituted two separate civil suits for specific
performance, only for the purpose of execution of sale deeds as
plaintiff claimed to have already obtained possession of suit land
prior to filing of suits, in furtherance to the two agreements for
sale dated 30.08.1991. One civil suit No. 23/2000 was instituted
on 22.08.1994 and which was decreed vide judgment dated
16.01.2004, and another civil suit no. 22/2000 was instituted on
19.12.1992, which was decreed vide judgment dated 19.01.2004.
The defendants, judgment debtors who are respondents No.2 and
3 herein (now represented through their legal representatives),
challenged both decrees dated 16.01.2004 and 19.01.2004 by
way of filing two separate first appeals. It appears that during
course of first appeals, parties entered into compromise and
accordingly both first appeals were dismissed as withdrawn on
22.08.2012. Thereafter respondent No.1-plaintiff- decree holder
filed two separate execution petitions. Notices of execution
petitions were issued to judgment debtors, but despite service of
notices, when they did not appear, the executing court permitted
the plaintiff-decree holder to deposit remaining sale consideration
along with charges of registry in the court, as also to submit the
draft sale deed to be executed. The executing court, due to non-
appearance of the judgment debtors, considered the draft deeds
itself and passed order of approval of the draft of sale deeds and
then passed orders to execute and register sale deeds through
(15 of 23) [CR-202/2022]
court for and on behalf of judgment debtors in favour of plaintiff
decree holder Raghuveer singh and his wife Smt. Saroj kumari
and his son Birendra Vikram, and his daughter it means in the
name of persons suggested by the decree holder.
17. Sale deed dated 17.02.2021 has been executed and
registered in pursuance to the decree for specific performance
dated 16.01.2004 passed in civil suit No.23/2000 in the execution
petition No.86/2019 jointly in favour of plaintiff Raghuveer Singh,
his wife, son & daughter where against civil revision petition
No.202/2022 has arisen.
18. Sale deed dated 01.03.2021 has been registered in
pursuance to the decree for specific performance dated
19.01.2004 passed in civil suit No.22/2000 in execution petition
No.7/2013 jointly in favour of plaintiff-Raghuveer singh and his
wife Smt. Saroj Kumari, where against revision petition
No.203/2022 has arisen.
19. Therefore, one thing is admitted and clear that both sale
deeds in question have not been executed by the executing court
in pursuance of any auction sale of the immovable property during
the course of execution proceedings to realize fruits of any decree.
Provision of Order 21 Rule 90 CPC deals with cases for setting
aside the auction sale on the ground of material irregularity or
fraud in publishing or conducting such sale, when made under the
orders of Executing Court for the purpose of realizing the fruits of
decree. Execution of sale deeds, in furtherance to the decree for
specific performance, by the executing court just for and on behalf
of judgment debtors, in favour of decree holder may not be
confused with the sale deed, executed by the court pursuant to
(16 of 23) [CR-202/2022]
the orders of executing court in order to realize fruits of decree. In
order to clarify the situation more specifically, Order 21 Rule 90
CPC itself may be considered:
"Order XXI:
90. Application to set aside sale on ground of
irregularity or fraud.-
1) Where any immovable property has been sold in
execution of a decree, the decree-holder, or the
purchaser, or any other person entitled to share in a
reteable distribution of assets, or whose interests are
affected by the sale, may apply to the Court to set
aside the sale on the ground of a material irregulartiy
or fraud in publishing or conducting it.
2) No sale shall be set aside on the ground of
irregularity or fraud in publishing or conducting it
unless, upon the facts proved, the Court is satisfied
that the applicant has sustained substantial injury by
reason of such irregularity or fraud.
3) No application to set aside a sale under this rule
shall be entertained upon any ground which the
applicant could have taken on or before the date on
which the proclamation of sale was drawn up.
Explanation- The mere absence of, or defect in,
attachment of the property sold shall not be, by
itself, be a ground for setting aside a sale under this
rule."
20. Therefore, it can safely be observed that challenge to
registered sale deeds dated 17.02.2021 & 01.03.2021, executed
by the Executing Court in favour of respondent No.1-plaintiff-
decree holder along with other persons named by decree holder, in
the process of execution of the decree for specific performance,
does not fall & covered within the scope of Order 21 Rule 90 CPC.
Therefore, applications filed by petitioners invoking provisions of
Order 21 Rule 90 CPC, virtually for the purpose of seeking
declaration of both registered sale deeds of plaintiff decree holder
as null & void are misconceived and misdirected.
(17 of 23) [CR-202/2022]
21. In impugned orders, the learned Executing Court also
observed that applications are not maintainable under Order 21
Rule 90 and Section 151 CPC, but the counsel for petitioners
would argue that applications should not be dismissed merely on
account of mentioning a wrong provision of law, but the substance
of application be looked into, therefore, both applications were
considered by the executing court on merits as well.
22. In the impugned order dated 25.08.2022, the Executing
Court has clearly observed that as far as decree dated
19.01.2004, passed in civil suit No.22/2000 title Raghuveer singh
Vs. Jethmal is concern, there is no Schedule 'B' appended, and
petitioners have no case to contend that sale deeds have been
executed contrary to terms of the judgment and decree dated
19.01.2004. As far as decree dated 16.01.2004, passed in civil
suit No.23/2000 titled Raghuveer singh Vs. Bhanwar lal Mundra
and Nagarmal is concerned, where Schedule 'B' is appended with
the plaint and decree was passed in favour of the respondent
No.1-plaintiff to get execute sale deeds jointly or separately as per
Schedule 'B' according to instructions of plaintiff, it is not clarified
nor there are any details and specifications as to in what manner,
ratio and portion, sale deeds of the land in question were to be
executed in favour of persons named in Schedule 'B' and
executing court noticed that there are no details of assets to show
that how much amount was contributed by persons, named in
Schedule 'B'. Petitioners too have not been able to give any details
in this respect, in their applications filed Under Order 21 Rule 90
CPC.
(18 of 23) [CR-202/2022]
The Executing Court has noticed that petitioners were
admittedly not party in suits and further directions in the decree
dated 16.01.2004 to execute the sale deed jointly or severally in
favour of persons named in Schedule 'B' are directory in nature, at
the choice of plaintiff decree holder. Therefore, with such findings
the Executing Court has found that petitioners, may avail the
remedy by way of filing fresh civil suits for their grievances as
raised in applications and both applications have been dismissed
with such liberty to petitioners.
23. Before this Court also, during the course of arguments,
counsel for petitioners in a humble voice has contended that if
provisions of Order 21 Rule 90 and Section 151 CPC are not
applicable to the present case of petitioners, their applications
may be treated within appropriate provisions of law. But, no
specific provision, under which objections pointed out by
petitioners through their application under Order 21 Rule 90 CPC
can be considered, have been pointed out despite repeated
askance by the court. On the contrary counsel for respondents has
submitted that the applications of petitioners, neither can be
considered under Order 21 Rule 90 nor are amenable within scope
of Section 47 CPC.
24. This Court has looked into the provision of Section 47 CPC as
well which provides a procedure to determine all questions arising
between the parties to the suit in which decree was passed or
their representatives and which are related to execution,
discharge or specification of the decree, by the Executing Court
and not by a separate suit. Undisputedly, both petitioners are
neither party in the agreements dated 30.08.1991 nor in the suit
(19 of 23) [CR-202/2022]
proceedings. Petitioners could not clarify as to under which status,
they are entitle to file objections under Section 47 CPC. The case
of petitioners as alleged in their applications is that respondent
No.1-plaintiff Raghuveer Singh was the senior most member of
the family and both civil suits were filed by him, for and on behalf
of petitioners, and after procuring the decree of specific
performance, respondent No.1-plaintiff has betrayed and played
fraud with petitioners by excluding names of petitioners, while
getting sale deeds executed and registered in the execution
proceedings of the decree. But, petitioners have nowhere
explained their role/active participation during the period even
after passing the decree dated 16.01.2004 and 19.01.2004 until
execution of two sale deeds dated 17.02.2021 & 01.03.2021. It
has not been disputed that against both the decree, two first
appeals were preferred by defendants-judgment debtors but both
first appeals were dismissed as withdrawn on 22.08.2012
according to the compromise. Counsel for respondent has placed
on record an agreement dated 25.06.2012, whereunder parties
entered into compromise at the stage of first appeals and
according to which both first appeals were withdrawn. On this
agreement, it has been alleged that petitioner No.2-Vinod Kumar,
put his signature as witness. Petitioners, while have not disputed
and denied the fact of dismissing first appeals according to
compromise, but nowhere have whispered about the execution of
the agreement dated 25.06.2012. Be that as it may at this stage,
while considering the nature of objection by petitioners to
challenge two sale deeds, this Court is not entering into such
controversy in respect of waving their right, whatsoever after
(20 of 23) [CR-202/2022]
signing the agreement dated 25.06.2012. It is suffice to observe
that all such issues and disputed questions of facts inter see
between plaintiff and petitioners, are at the most, may be the
subject matter of a civil suit, for which the executing court has
already granted liberty to petitioners. Notwithstanding, if
petitioners allege themselves to be representative of the plaintiff-
decree holder and want to get determine such issues from the
Executing Court only, instead of filing a civil suit, they are at
liberty to choose the proper remedy in law either by way of filing
objections Under Section 47 CPC or by way of filing civil suit. As
far as objections filed by petitioners by way of present applications
are concern, they are not liable to be considered within the scope
of Section 47 CPC because of not showing locus standi and lack of
pleadings. Therefore, petitioners are at liberty to get decide their
grievances, whatsoever, by way of filing appropriate proceedings,
by invoking jurisdiction of Court under proper provisions of law, so
that the opposite party may get opportunity and Court may be
able to deal with cases of petitioners accordingly.
25. Learned Counsel for petitioners has tried to persuade this
Court that the Executing Court has breached the mandatory
procedure of Order 21 Rule 34 CPC, while proceeding to execute
sale deeds in question. Attention of this Court has been invited to
order-sheets and proceedings of the execution petitions to
contend that draft sale deeds were not served on the judgment
debtors together with a notice requiring objections, if any to be
made by the judgment debtors. On perusal of relevant order
sheets of execution proceedings placed on record, it appears that
notices of execution petitions were issued to the judgment
(21 of 23) [CR-202/2022]
debtors, who despite service of notices did not appear before the
Executing Court. Thereafter the Executing Court has permitted the
plaintiff decree holder to deposit remaining sale amount in the
court as already observed in the decree and permitted the plaintiff
decree holder, to submit draft sale deeds. Since in absence of
judgment debtors, no objections from their side against draft sale
deeds submitted by decree holder were raised, the Executing
Court itself approved the draft sale deeds, and proceeded to
execute & register sale deeds, for and on behalf of the judgment
debtors, in favour of the plaintiff decree holder along with the
persons whose names were suggested by the plaintiff-decree
holder. This Court does not find any breach of provisions of Rule
34 of Order 21 CPC, in given facts and circumstances of the case
and further, petitioners have not been able to show their locus
standi to raise such objections, as petitioners neither have status
of the decree-holder nor of the judgment debtor. For the aforesaid
reasons, the judgment of Hon'ble Supreme Court in case of Rajbir
(supra) relied upon by counsel for petitioners does not render any
help and support to petitioners.
26. Now dealing with objection of petitioners that Executing Court
has traveled beyond terms of the decree, while executing sale
deeds in question, it is true that there can be no dispute to the
proposition that the Executing Court cannot go beyond the decree,
but here in present case, after passing the impugned decree dated
16.01.2004, same was assailed by way of first appeal and the
first appeal was dismissed as withdrawn according to the
compromise. This Court is not convinced that unless & until some
rights are not conferred upon the petitioners, under which
(22 of 23) [CR-202/2022]
capacity and under what kind of rights, they are authorized to
contend that the Executing Court has traveled beyond terms of the
decree, while executing the sale deeds in question.
27. Petitioners have nowhere disclosed terms of the compromise.
Though counsel for respondent No.1 has referred and relied upon
the agreement dated 25.06.2012 whereunder parties entered into
compromise in respect of lands in question of both civil suits and
prima facie it appears that one of petitioner, also put his
signatures on this agreement, in view of such subsequent facts
and keeping in mind the status of petitioners who were neither
party in the original agreements dated 30.08.1991 nor were party
in civil suits nor explain their role and participation after passing
judgments & decree dated 16.01.2004 & 19.01.2004, until and
before filing of these two applications under Order 21 Rule 90 CPC
dated 04.02.2000, before the Executing Court, this Court is not
convinced with the argument of petitioners and do not agree that
any of sale deed in question has been executed and registered by
the Executing Court in breach of and in violation to terms of the
decree. Therefore, in such facts & circumstances of the present
cases, the judgments cited by counsel for petitioners in cases of
V.Ramaswami Aiyengar (Supra), Mangilal Sharma (Supra),
Rajasthan Financial Corporation (Supra) & Brij Mohan Das
(Supra) in support of such principle of law that the Executing
Court cannot go beyond the decree, do not render any
help/support to the cases of petitioners.
28. The upshot of discussion made hereinabove, is that both
revision petitions are not liable to succeed. In the result both
(23 of 23) [CR-202/2022]
petitions are hereby dismissed with the observations/liberty
recorded hereinabove. No costs.
29. All other pending application(s), if any, also stand(s)
disposed of.
(SUDESH BANSAL),J
NITIN/
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