Delhi High Court
Satish Chand vs Raj Kumar on 17 September, 2018
Equivalent citations: AIRONLINE 2018 DEL 2864
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 17th September, 2018.
+ EX.F.A. 19/2018
SATISH CHAND ..... Appellant
Through: Mr. Ankit Jain with Mr. Sarvesh Rai
and Mr. Siddhant Nath, Advs.
Versus
RAJ KUMAR ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Notice issued to the respondent remains unserved with the
endorsement 'left the premises'.
2. The counsel for the appellant states that the appellant is not aware of
any other address of the respondent.
3. Considering the facts of the present appeal, the same is believable.
4. This Execution First Appeal impugns the order [dated 15 th February,
2018 in Ex. Civil No.1267/2017 of the Court of the Additional District
Judge-04 (South-West)] of dismissal of application for execution filed by
the appellant.
5. The appeal came up first before this Court on 18 th May, 2018 when
notice thereof was ordered to be issued. The respondent as aforesaid,
remains unserved.
6. The counsel for the appellant has been heard and the copies of the
relevant Trial Court record annexed to the memorandum of appeal perused.
EX.F.A. 19/2018 Page 1 of 8
7. The appellant instituted the suit, from application for execution of
decree wherein this Execution First Appeal arises, inter alia for recovery of
possession of property No.1677-C, Todar Mal Colony, Prem Nagar,
Najafgarh, Delhi - 110 043, pleading (i) that the appellant/plaintiff was a
tenant under one Raghunath Singh in the aforesaid property at a monthly
rent of Rs.1,700/-; (ii) the appellant/plaintiff was carrying on his business
from the said premises; (iii) the respondent/defendant was a tenant under
the same Raghunath Singh in another shop in the same property; and, (iv)
that the respondent/defendant forcibly took possession of the shop of the
appellant/plaintiff also. Accordingly, the suit for recovery of possession
under Section 6 of the Specific Relief Act, 1963 was filed.
8. The respondent/defendant contested the aforesaid suit.
9. However the Suit Court, vide judgment dated 19th November, 2016
allowed the suit of the appellant/plaintiff and passed a decree in favour of
the appellant/plaintiff and against the said Raghunath Singh of recovery of
possession of shop in the tenancy of the appellant/plaintiff.
10. The counsel for the appellant/plaintiff, on enquiry states that no
appeal was preferred against the aforesaid judgment.
11. The appellant/plaintiff applied for execution of the decree aforesaid
and the respondent/defendant filed objections to such execution pleading
that he had as far back as in the year 2016 handed over possession of the
shop, for recovery of possession whereof decree was passed, to Raghunath
Singh. Vide the impugned order dated 15th February, 2018, the objections
of respondent/defendant have been allowed and the execution application of
appellant/plaintiff has been dismissed.
EX.F.A. 19/2018 Page 2 of 8
12. The Executing Court has held, that once the
respondent/defendant/judgment debtor had handed over possession to
Raghunath Singh, the remedy if any of the appellant/plaintiff was against
the said Raghunath Singh and not under the decree against the
respondent/defendant.
13. The counsel for the appellant/plaintiff also admits that the
respondent/defendant left the premises in the year 2016 and on enquiry
states that Raghunath Singh is now in possession of the property.
14. It is in the aforesaid scenario that it has been observed hereinabove
that the statement of the counsel for the appellant/plaintiff that the
appellant/plaintiff is not aware of any other address of the
respondent/defendant, is believable. The respondent/defendant admittedly is
now left with no concern with the premises with respect to which decree
was passed and would not be interested in defending the same.
15. Having found it mentioned in the judgment in the suit, that
Raghunath Singh aforesaid had also filed proceedings for ejectment of the
appellant/plaintiff from the premises, for recovery of possession of which
the appellant had sued the respondent/defendant, the fate of the said
proceedings has been enquired.
16. The counsel for the appellant/plaintiff states that Raghunath Singh
had filed the said proceedings claiming the rent of the premises let out to
the appellant/plaintiff to be Rs.13,500/- per month, when according to the
appellant/plaintiff the rent was Rs.1,700/- per month. It is further stated that
the said suit filed by Raghunath Singh has been dismissed vide judgment
dated 6th January, 2017 in CS No.16731/2016 (Old No.329/2014) of the
EX.F.A. 19/2018 Page 3 of 8
Court of the Additional District Judge-04 (South-West)] and no notice of
appeal if any preferred thereagainst has been received as yet.
17. The position which thus emerges is, (i) that the appellant/plaintiff
himself, admittedly was/is a tenant in the shop under Raghunath Singh; (ii)
a decree for recovery of possession of the said shop was passed in favour of
the appellant/plaintiff and against the respondent/defendant; and, (iii)
notwithstanding the said decree having attained finality, the application for
execution of the said decree has been dismissed owing to the stand of the
respondent/defendant that he had in January, 2016 i.e. prior to the date of
the decree dated 19th November, 2016, delivered possession of the shop to
the landlord Raghunath Singh. The question which arises is, whether on a
defendant/judgment debtor so parting with possession of the property, for
recovery of possession whereof from him a suit is pending, the suit or the
decree ultimately passed therein can be defeated.
18. I have however, at the outset enquired from the counsel for the
appellant/plaintiff, how this Execution First Appeal is maintainable.
19. The counsel for the appellant/plaintiff has drawn attention to Rule
103 of Order XXI of the Code of Civil Procedure, 1908 (CPC) and which in
turn refers to adjudication under Rules 98 or 100 of Order XXI of the CPC.
Rules 98 and 100 in turn refer to Rule 101 and which in turn refers to Rules
97 or 99.
20. On a composite reading of the said Rules, it transpires that findings
in execution qua possession constitute a decree and are appealable as such.
The appeal is thus found to be maintainable.
EX.F.A. 19/2018 Page 4 of 8
21. In my mind there is no doubt as to the position of law. Raghunath
Singh, even if landlord of the appellant/plaintiff, could not have recovered
possession of the premises let out to the appellant/plaintiff, save in
accordance with law. Raghunath Singh on the contrary, has recovered
possession of the said premises from the appellant/plaintiff, by taking
possession thereof from the respondent/defendant who himself has been
found in the judgment and decree in the suit, to have without the consent of
the appellant/plaintiff and otherwise than in due course of law, dispossessed
the appellant/plaintiff, from the said premises and who has been ordered
and/or directed to deliver possession of the said premises to the
appellant/plaintiff. If law were to be permitted to allow so, no claim for
recovery of possession will ever attain finality or even if allowed by Court,
fructify, with the dispossessors, without due process of law, from
immovable property or persons in unauthorised occupation of immovable
property, after fully contesting the proceedings filed against them for
recovery of possession of such property and losing the said proceedings or
when on the verge of losing the same, transferring possession to another
and the lawful owner/occupier being required to institute fresh proceedings
against such transferee.
22. The counsel for the appellant/plaintiff rightly draws attention to
Section 52 of the Transfer of Property Act, 1882 which inter alia provides
that during the pendency of a suit, the property cannot be transferred or
otherwise dealt with, so as to affect the right of any of the parties thereto
under any decree or order which may be made therein, except under the
authority of the Court. The admitted act of the
EX.F.A. 19/2018 Page 5 of 8
respondent/defendant/judgment debtor, of handing over possession of the
shop to Raghunath Singh, during the pendency of the suit filed by the
appellant/plaintiff, amounted to otherwise dealing with the property and
Raghunath Singh shall remain bound by the decree and the
appellant/plaintiff, in execution, will remain entitled to recover possession
from Raghunath Singh and/or whosoever else may be in possession of the
property unless they establish any independent right.
23. I may add, that it is for this reason only that Order XXI Rule 35 of
the CPC, while providing mode of execution of a decree for immovable
property, in sub-rule (1) thereof provides that where a decree is for delivery
of any immovable property, possession thereof shall be delivered to the
party to whom it has been adjudged, by removing "any person bound by the
decree who refuses to vacate the property". The said Rule does not say
'....by removing the defendant/judgment debtor from the property'. The
decree is thus entitled to be executed, not only against the
defendant/judgment debtor but against any person who may be found in
possession of the property. This becomes further clear from Rule 102 of
Order XXI which provides that nothing in Rules 98 and 100 shall apply to
resistance or obstruction in execution of a decree for possession of
immoveable property by a person to whom judgment debtor has transferred
the property after the institution of the suit in which decree was passed or to
the dispossession of any such person.
24. Though the law is absolutely clear and no precedent is required but
since the Additional District Judge, notwithstanding the same has dismissed
the execution, it is also deemed appropriate to refer to Silverline Forum
EX.F.A. 19/2018 Page 6 of 8
Pvt. Ltd. Vs. Rajiv Trust (1998) 3 SCC 723 holding that if the resistance to
the execution is made by transferee pendente lite of the judgment debtor,
the scope of adjudication under Rule 101 of Order XXI of the CPC would
be shrunk to the limited question whether he is such transferee and on a
finding in the affirmative regarding that point, the Execution Court has to
hold that he has no right to resist in view of the clear language contained in
Rule 102; it was further held that exclusion of such a transferee from
raising further objection is based on the salutary principle adumbrated in
Section 52 of the Transfer of Property Act. In Usha Sinha Vs. Dina Ram
(2008) 7 SCC 144 it was further held that a transferee from a judgment
debtor is presumed to be aware of the proceedings before a Court of law
and that Rule 102 of Order XXI of the CPC takes into account the ground
reality and refuses to extend a helping hand to purchasers of property in
respect of which litigation is pending. It was reasoned that if unfair,
inequitable or undeserved protection is afforded to a transferee pendente
lite, a decree holder will never be able to realize the fruits of his decree and
every time the decree holder seeks a direction from a Court to execute the
decree, the judgment debtor or his transferee will transfer the property and
the new transferee will offer resistance or cause obstruction; to avoid such a
situation, Rule 102 of Order XXI of the CPC has been enacted.
25. Resultantly, the appeal is allowed and the impugned order is set aside
and the execution application restored to the same position as immediately
before the impugned order.
26. The Executing Court is however directed to, instead of issuing notice
to the respondent/judgment debtor of the execution, issue notice thereof to
EX.F.A. 19/2018 Page 7 of 8
Raghunath Singh, who according to the appellant also is in possession of
the shop, so that the independent claim if any of Raghunath Singh to the
decretal property can be known.
27. The appeal is disposed of.
28. A copy of the impugned order and this judgment be forwarded to the
Committee of Inspecting Judges of the learned Additional District Judge.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 17, 2018 'pp/bs' EX.F.A. 19/2018 Page 8 of 8