M/S Jodhpur Handicrafts Cluster ... vs Rajveer Singh S/O Late Shri ...
2023 Latest Caselaw 3798 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR


                   S.B. Execution First Appeal No. 8/2015
        M/s Jodhpur Handicrafts Cluster Pvt Ltd Registered
        Office 209, Galaxy Star Central Spine, Vidyadhar Nagar,
        Jaipur through Authorised Director Mahesh Kumar
        Jangid S.o Late Shri Prabhu Narain Jangid.
                                                       ----Appellant-Objector
                                         Versus
        1. Rajveer Singh S/o Late Shri Harnath Singh (since
        deceased) through LRs:-
        1/1. Ridhi Raj Singh Son of Late Shri Rajveer Singh
        1/2. Rishi Raj Singh Son of Late Shri Rajveer Singh
        Both Residents of Dundlod House, Hawa Sarak, 22
        Godown, Jaipur
        2. Smt. Uma Kumari W/o Rajveer Singh
        Both Residents of Dundlod House, Hawa Sarak, Jaipur
        3. Thakur Ranveer Singh S/o Shri Harnath Singh, R/o
        Dundlod House, Hawa Sarak, Jaipur


                                                                ----Respondents

For Appellant(s) : Mr. Jitendra Mitrucka, Adv.

Ms. Nidhi Khandelwal, Adv.

For Respondent(s) : Mr. N. K. Maloo, Senior Counsel with Mr. V. K. Tamoliya, Adv.

Mr. J. K. Singhi, Senior Counsel with Mr. Tarun Verma, Adv.

Ms. Suruchi Kasliwal, Adv.

Mr. Anuroop Singhi, Adv.

HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

Judgment

DATE OF JUDGMENT 19/08/2023

Instant execution first appeal under Order 21 Rule 103 CPC

has been filed by the appellant-objector (for short 'the objector')

against the order dated 08.05.2015 passed by the Additional

District & Sessions Judge No.11, Jaipur Metropolitan in Execution

Petition No.98/2012, whereby the objections filed by the objector

(2 of 5) [EFA-8/2015]

under Section 47 and Order 21 Rules 97, 99 & 101 CPC has been

rejected.

Learned counsel for the objector submits that the disputed

property was mortgaged with the RFC. The respondent No.3 was

not in a position to redeem the mortgaged property. So, he had

executed special power of attorney dated 29.06.2011 and

authorized the objector to get the property redeemed. Thereafter,

the objector paid Rs. 76 lacs on 01.07.2011 and obtained original

title documents as well as physical possession from the RFC.

Thereafter, the respondent No.3 executed the registered sale deed

of disputed property on 02.07.2011 in favour of the objector.

Learned counsel for the objector also submits that the respondent

No.3 had entered into an agreement to sale dated 08.09.2000 in

favour of Satish Dabi on sale consideration of Rs.42 lacs to settle

the dues of the RFC but Satish Dabi failed to make the payment.

So, the said agreement to sell was cancelled. After that, the

respondent No.3 had executed a power of attorney in favour of

Satish Dabi in continuation of the agreement dated 08.09.2000.

According to power of attorney, Satish Dabi had no right to sell

this property but he in connivance with the respondent No.1

executed the sale deed (Exhibit-1 and Exhibit-2) in favour of

respondent No.1 without any consideration. Respondent No.1 had

filed a suit for possession of this property and the trial court vide

its judgment dated 06.05.2009 decreed the suit filed by the

respondent No.1.

Learned counsel for the objector further submits that the

said property was mortgaged with RFC. So, the respondent No.1,

who is brother of the respondent No.3 being a mortgagor, also had

(3 of 5) [EFA-8/2015]

no right to purchase the said property without redeeming the

mortgage. Respondent No.3 had challenged the said decree by

way of first appeal.

Learned counsel for the objector further submits that the

objector had filed objections under Section 47 and Order 21 Rules

97, 99 & 101 CPC before the executing court but the executing

court wrongly dismissed the objections filed by the objector vide

order dated 08.05.2015. Learned counsel for the appellant further

submits that the disputed property could not be sold without

redeeming it but Executing Court instead of taking evidence on

this point dismissed the objections filed by the objector in cursory

manner. Objector had purchased the property through registered

sale deed after getting it redeemed from mortgage with RFC. So,

the objector is entitled to get possession of this property. So, the

appeal filed by the objector may be allowed.

Learned counsel for the respondent No.3 supports the

arguments advanced by learned counsel for the objector and

submitted that the objector had purchased the disputed property

by way of consideration and paid the dues of RFC. So, the objector

is entitled to get possession of the disputed property.

Learned counsel for the respondent Nos.1 and 2 has opposed

the arguments advanced by learned counsel for the objector and

submitted that the Executing Court has rightly dismissed the

objections filed by the objector because objector had raised the

objections which were already decided by the trial court and

decreed the suit filed by them. Learned counsel for the respondent

Nos.1 and 2 further submits that the objector steps in the shoes of

Ranveer Singh, so he cannot take separate defence which were

(4 of 5) [EFA-8/2015]

raised by Ranveer Singh. Learned counsel for the respondent

Nos.1 and 2 also submitted that after passing the order dated

08.05.2015, the executing court had dismissed the application

filed by the objector on 22.04.2016. The said order became final

and till today the objector has not challenged the order dated

22.04.2016 and as per the limitation act, order passed by the

executing court dated 22.04.2016 is not challengeable. Learned

counsel for the respondent Nos.1 and 2 further submits that in

objections, the objector had not sought any relief regarding

possession of the disputed property, so said relief cannot be given

to the objector. So, the appeal filed by the objector may be

dismissed.

Learned counsel for the respondents has placed reliance

upon the following judgments. (1) Darshan Singh Vs. State Of

Punjab reported in (2007) SCC 262; (2) Sanjay Verma Vs.

Manik Roy and Others reported in (2006) 13 SCC 608.

I have considered the arguments advanced by learned

counsel for the objector as well as learned counsel for the

respondents.

It is an admitted position that the objector had filed the

objections before the trial court under Section 47 and Order 21

Rules 97, 99 & 101 CPC before the executing court. Contention of

the objector is that the respondent No.3 had given special power

of attorney dated 29.06.2011 to redeem mortgage property from

RFC and the objector had paid Rs.76 lacs on 01.07.2011. After

that, respondent No.3 had executed the sale deed in favour of the

objector on 02.07.2011. Appeal filed by the respondent No.3 has

been allowed by this court in civil appeal No.401/2009, in which,

(5 of 5) [EFA-8/2015]

this court clearly held that the sale deed executed by Satish Dabi

in favour of respondent No.1 was not according to law because the

disputed property which was already mortgaged with RFC, could

not be sold. So, the executing court has wrongly dismissed the

objections filed by the objector regarding execution of the decree.

So, in my considered opinion, the order of the trial court dated

08.05.2015 deserves to be set-aside, which is accordingly set-

aside.

The appeal filed by the objector is allowed. The objector is

entitled to get possession of the disputed property from

respondent Nos.1 and 2 which was handed over to them in

execution of civil suit No.36/2006(478/2003) titled as "Rajveer

Singh & Anr. Vs. Thakur Ranveer Singh".

(NARENDRA SINGH DHADDHA),J

Gourav/292

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