Delhi District Court
Mrs. Renu Sharma vs Ms. Meena Chaudhary on 28 January, 2016
IN THE COURT OF MS. VINEETA GOYAL, ADDITIONAL DISTRICT
JUDGE 01, PATIALA HOUSE COURTS, NEW DELHI DISTRICT, NEW
DELHI
Execution No. 43/14
1. Mrs. Renu Sharma
2. Mrs. Neelam Singh
[Through Attorney Mrs. Renu Sharma]
......... non - applicant / Decree Holders
Versus
Ms. Meena Chaudhary
@ Meena P.N. Singh
........ applicant /Judgment Debtor
Appearance : Sh. Gursharan, counsel for decree holders.
Judgment debtor in person.
O R D E R
1. As a sequel to exparte decree 15.02.2012, the execution proceedings had been initiated by the non applicant / decree holder against applicant / judgment debtor. The applicant / judgment debtor during these proceedings however, moved applications on various dates raising certain objections which are being disposed off vide this order.
2. The present execution has emerged out of an exparte judgment dated 15.02.2012 passed in Suit No. 778/11 in favour of non applicant / decree holder. At Execution no. 43/14 Mrs. Renu Sharma & Anr vs. Meena Choudhary Page no. 1 of 16 the trial stage, the respondent / decree holder herein prayed for possession of a part of premises bearing Flat No. 1260 (Ist Floor), Category 3, Pocket J, Sector D, Vasant Kunj, New Delhi which was allegedly under the permissive possession of the applicant / judgment debtor. The brief facts narrated were that the plaintiff's therein were owners of the said flat by virtue of gift deed dated 05.02.2010. Ms. Renu Sharma gifted half portion of said flat to her sister Ms. Neelam Sharma vide gift deed dated 02.06.2011. The applicant / judgment debtor is set to be in occupation of part of suit property since 20032004 as she was raising construction of her house in Gurgaon, Haryana. It is claimed that in early 2007, the permission to occupy the suit premises was withdrawn and eventually a legal notice dated 31.10.2011 was issued to judgment debtor calling upon handing over the possession of the property alongwith mesne profits / damages etc. The suit was decreed in favour of respondent / decree holder and against applicant / judgment debtor and a decree was passed granting relief as under :
RELIEF :
i) A decree of possession of room (adjacent to the kitchen) as shown red in the site plan Ex. PW1/2 Flat bearing no. 1260, Ist Floor, Category III, PocketI, SectorD, Vasant Kunj, New Delhi in favour of the plaintiff and against the defendants and defendants is directed to deliver the physical, peaceful and vacant possession of the same to the plaintiff.
ii) A decree of Rs.3,60,000/ towards mesne profits / damages @ Rs.10,000/ per month for the period last three years alongwith pendentelite and future interest @ 9%p.a till its realization in favour of the plaintiff and against defendants.
iii) A decree of pendentelite and future interest mesne profits / damages @ Rs.15,000/ in favour of the plaintiff and against the defendants from the date of filing of the suit till Execution no. 43/14 Mrs. Renu Sharma & Anr vs. Meena Choudhary Page no. 2 of 16 handing over possession with interest @ Rs.9 % per annum from the date of filing of suit till amount recovered.
iv) A decree of permanent injunction in favour of the plaintiff and against the defendants creating third party interest and / or handing over to the third party the possession of the suit as shown red in the site plan Ex. PW1/2.
v) A decree of permanent injunction in favour of the plaintiff and against the defendant restraining the defendant from interfering in the possession as well as ingress and egress of Flat bearing no. 1260, Ist Floor, Category III, PocketI, SectorD, Vasant Kunj, New Delhi, as shown in green in the site plan Ex.
PW1/2.
3. The respondent / decree holder armed with the aforesaid judgment dated 15.02.2012 instituted the present execution petition which was registered on 04.02.2014. A warrant of attachment of decreetal amount and warrant of possession of suit property was issued on 12.02.2014. The applicant / judgment debtor filed her appearance and moved an application dated 07.03.2014 for setting aside exparte decree dated 15.02.2012. The copies of the same were supplied. On the other hand, respondent / decree holder moved an application for police aid alongwith directions to break open the locks of the suit property. The applicant / judgment debtor also moved a stay application u/o 21 rule 26 and 29 r/w 151 of CPC. Both these applications were disposed of by the then Ld. Presiding Officer vide order dated 31.05.2014 and the application of respondent / decree holder for providing of police aid with the directions to break open locks of suit property was allowed on 04.07.2014 which was forwarded to Ld ACJ. The warrant of possession was executed on 13.07.2014 and execution was reported on 18.07.2014 (the date already fixed).
Execution no. 43/14 Mrs. Renu Sharma & Anr vs. Meena Choudhary Page no. 3 of 16
4. It is pertinent to mention that applicant / judgment debtor moved a Writ Petition (Cri) no. 145 of 2014 before Hon'ble Supreme Court of India invoking Article 32 of the Constitution of India. The Hon'ble Apex Court was pleased to pass the following order on 19.08.2014:
This writ petition has been filed by the petitioner under Article 32 of the Constitution of India for the following relief :
(i) the gift deeds dated 05.02.2010 and 02.06.2011 registered fraudulently related to 1260, Sector D, Pocket I, Vasant Kunj, New Delhi in favour of Respondent Nos. 6 and 7 be declared null and void ;
(ii) the decree dated 15th February, 2012 passed in Suit No. 778 of 2011 be declared as null and void ;
(iii) direct Respondent No. 1 to provide police protection to restrain the Respondent Nos. 6 & 7 or their agents from entry into the premises at 1260, D1 Vasant Kunj and to secure the safety of the entire belongings of the petitioner in her said flat.
The matter was heard at length on 11.08.2014 and we were of the view that petition filed under Article 32 of the Constitution of India cannot be entertained. However on the submissions made by the petitioner who is appearing in person that she was illegally and forcibly thrown out of the Flat, we just called for the record of Execution Case No. 35 of 2014 pending before the ADJ03/PHC, New Delhi. From the perusal of the said record, it appears that on 31.05.2014, the executing court passed the following order :
"JD in person.
I have already hard the arguments on behalf of both the parties on the objections of JD. I have perused the record carefully.
The objections of the JD have been erroneously filed u/o 9 rule 13 CPC. It is noteworthy that a separate petition u/o 9 rule 13 CPC has also been filed by the JD for setting aisde the decree dated Execution no. 43/14 Mrs. Renu Sharma & Anr vs. Meena Choudhary Page no. 4 of 16 15.02.2012 in Civil Suit No. 778/11. Vide a spearate order of even date, that applcation u/O 9 rule 13 CPC (No.M1/14) of the JD has been dismissed.
The submission in the present application are same as those in the petition u/O 9 rule 13 CPC registered as M1/14 titled as "Dr. Meena Chaudhary vs. Renu Sharma & Anr.". During the course of arguments, Ld. Counsel for the JD has conceded that the present application/objections would sustain only if the application u/O 9 rule 13 CPC (M1/14) is allowed.
JD has filed no supporting document to show that she is the owner of the DDA Flat No.1260, Sector D, PocketI, Vasant Kunj, since 01.05.2003. On the contrary, copy of JD's Writ Petition (Crl. No. 1116 of 2010) titled as "Dr. Meena P.N. Singh vs. BSES & Ors."
filed before Hon'ble High Court of Delhi shows that JD herself referred to the suit property as guest House run by Aglomed Co. and claimed to be in occupation in one of its room. The petition is dated 30.07.2010. JD has not disputed this document.
Further, it is well settled that the Executing Court cannot go behind the decree. The objections of the JD are without any merit and are accordingly dismissed. The stay order dated 15.04.2014 vide which the execution petition was stayed stands vacated. The application of the decree holder for grant of police aid is pending before this court. Let the copy of this application alongwith statement of Bailiff and his report as well as copy of this order be placed before Ld. District Judge for providing police aid for execution of Warrant of Attachment and Warrant of Possession. Put up for further proceedings on 18.07.2014."
It further appears that the necessary police aid was sanctioned. The letter of learned District & Sessions Judge, New Delhi District dated Execution no. 43/14 Mrs. Renu Sharma & Anr vs. Meena Choudhary Page no. 5 of 16 05.06.2014 along with the copy of communication dated 11.06.2014 of Additional DCP is on record.
Consequently, warrants of possession of the suit property and warrants of attachment of the decreetal amount were issued. It was only after complying with the requirements under the Statute, the petitioner appears to have been dispossessed.
5. In the above mentioned order, the Hon'ble Apex Court had taken cognizance of order dated 31.05.2014 passed by the then Presiding Officer and the aforesaid writ petition was finally disposed of by Hon'ble Apex Court on 28.08.2014 with the following observations :
We have heard the petitioner, who has appeared in person. We find no good ground to entertain the prayers made by the petitioner in exercise of our jurisdiction under Article 32 of the Constitution of India.
The writ petition is accordingly dismissed.
Liberty is granted to the petitionerinperson to avail her appellate remedy as against the order passed under Order IX Rule 13 of the Code of Civil Procedure, if she is so advised, in accordance with law. Additionally, the petitionerinperson may avail her other remedies, if any available under the law.
6. In the meantime, the applicant / judgment debtor on 15.07.2014 moved an application before the Court u/s 114 of CPC inter alia praying for recalling of order dated 04.07.2014. The applicant / judgment debtor also inter alia pleaded that passing of order dt. 31.05.2014 is not justified and further issuance of warrant of possession with the police aid suffers from mistake apparent on record. The applicant / judgment debtor also took number of other grounds under the said application. The said application was dismissed vide order dated 27.09.2014 by the Execution no. 43/14 Mrs. Renu Sharma & Anr vs. Meena Choudhary Page no. 6 of 16 then Ld. Presiding Officer.
7. The applicant / judgment debtor also impugned the order dated 31.05.2014 passed by the then Presiding Officer before Hon'ble High Court of Delhi in FAO NO. 320/2014 inter alia praying that Ld. Trial Court has erred in dismissing application u/o 9 rule 13 of CPC praying for setting aside of exparte decree dated 15.02.2012. Hon'ble High Court vide judgment dated 07.11.2014 was pleased to dismiss the appeal of the applicant / judgment debtor. Hon'ble High Court in para 16 of the aforesaid judgment observed as under :
Para 16 : In this case appellant had notice of the dates as she had perused the summons. She also had sufficient time to appear in court before passing of the exparte decree. She did not participate in the proceedings even through the lawyer who she had allegedly engaged. She slept over the matter all most for about two years which shows her callousness and gross negligence inasmuch as ground taken by her lacks bonafides.
8. The applicant / judgment debtor on various dates moved number of applications in consideration which are as under :
(a) An application u/s 151 of CPC r/w Order 21 Rule 26 of CPC ;
(b) An application inter alia objecting to inventory prepared by bailiff ;
(c) An application u/s 151 of CPC r/w Section 21 and 26 of CPC ;
(d) An application u/o 21 rule 106 of CPC.
9. It is relevant to mention here that during the proceedings the applicant / judgment debtor was offered if she needs services of Legal Aid counsel but she declined and prayed that since she is handling her case herself therefore, some time may be granted to her. The applicant / judgment debtor has been Execution no. 43/14 Mrs. Renu Sharma & Anr vs. Meena Choudhary Page no. 7 of 16 continuously pursuing the applications on each date inter alia seeking adjournments with a request that same are required for effective presentation of her case.
10. It is argued by applicant / judgment debtor that the applicant / judgment debtor has filed a separate civil suit for declaration of her rights, interest and title over the suit property before this Court and as per Order 21 Rule 26 and 29 and 58 (5) of CPC, the execution proceedings be stayed till final disposal of that suit.
That separate suit was filed in pursuance to the observation made by Hon'ble Apex Court of India in writ petition. The alleged exparte orders dated 31.05.2014 and 04.07.2014 are null and void and non est for the reason of playing fraud by the respondent / decree holder. There is no provision under any of the rules which provides that executing court can issue warrant of possession without informing applicant / judgment debtor. It s further argued that the Ld Predecessor has passed impugned orders in violation of provisions as enshrined under sections 44, 41, 57 of Indian Evidence Act. The Ld. Predecessor has failed to appreciate the fact of not having pecuniary jurisdiction of the Court and decided the civil suit illegally. The applicant / judgment debtor was dispossessed illegally from the suit property. The inventory as well as valuation of the movable article has not been properly drawn.
11. Per contra, ld counsel appearing on behalf of respondent / decree holder argued that the applications in consideration moved by applicant / judgment debtor are without any basis. The applicant / judgment debtor was dispossessed after adopting due process of law. The objections raised by applicant / judgment debtor were duly considered by the Court and vide order dated 31.05.2014 the Execution no. 43/14 Mrs. Renu Sharma & Anr vs. Meena Choudhary Page no. 8 of 16 objections raised by applicant / judgment debtor were dismissed being devoid of merits. The applicant / judgment debtor did not vacate the suit property. The necessary police aid was sanctioned and thereafter warrant of possession of suit property and warrant of attachment of decreetal amount both with police aid against the applicant / judgment debtor with the direction to break open the locks of suit property was issued. On the visit of bailiff with police aid the applicant / judgment debtor left the premises without taking her belongings. The articles were given on superdari by bailiff legally and lawfully as per list of bailiff to one Sh. Lak Lak Yadav who after taking custody of belongings of applicant / judgment debtor had kept the same at a premises situated at Mehrauli, New Delhi. There were no other articles / belongings of applicant / judgment debtor besides the ones mentioned in the list. It is further submitted that one gas stove and two cooking gas cylinders are the property of Sh. Ashok Sharma (brother of decree holder), one aqua guard filter, ceiling fan (1 in dining hall, 2 in drawing room, 1 in each of three bed rooms), double bed with 2 side tables, 2 cotton mattresses, one 3 seater sofa with cushion, 2 single seater sofa with cushion, one centre table, 2 side tables, 2 glass potted plant containers and one plastic water tank are the properties of non applicant / decree holder. The explanation of this is given by stating that the applicant / judgment debtor was earlier occupying one room in the premises in the capacity of paying guest and same has been admitted by her in writ petition (Crl.)1116/2010 filed by her. The aforesaid properties are of applicant / decree holder their brothers and the same cannot be that of applicant / judgment debtor.
12. At the outset, it is to be appreciated in this case that it is settled law Execution no. 43/14 Mrs. Renu Sharma & Anr vs. Meena Choudhary Page no. 9 of 16 that in the execution proceedings, the executing court cannot go beyond the decree. A careful scrutiny of record reveals that the objections raised by applicant / judgment debtor regarding title and interest over the suit property were duly dealt in the earlier orders dated 31.05.2014 and 27.09.2014. It would be relevant to reproduce the relevant extracts of the earlier orders where most of the contentions raised have been examined and adjudicated upon. The same arguments and contentions have been raised by applicant / judgment debtor in the above mentioned applications. The Ld. Predecessor vide order dated 31.05.2014 dismissed the objections filed by applicant / judgment debtor and the relevant extract is reproduced as under:
JD has filed no supporting document to show that she is the owner of the DDA flat no.1260, Sector D, PocketI, Vasant Kunj since 01.05.2003. On the contrary, copy of JD's Writ Petition (Crl. NO.1116 of 2010) titled as "Dr. Meena P.N. Singh vs. BSES & Ors." filed before Hon'ble High Court of Delhi shows that JD herself referred to the suit property as Guest House run by Aglomed Co. and claimed to be in occupation of one of its room. The petition is dated 30.07.2010. JD has not disputed this document. Further, it is well settled that the Executing Court cannot go behind the decree. The objections of the JD are without any merit and are accordingly dismissed. The stay order dated 15.04.2014 vide which the execution petition was stayed stands vacated.
The application of the decree holder for grant of police aid is pending before this Court, let copy of this application along with statement of Bailiff and his report as well as copy of this order be placed before Ld. District Judge for providing police aid for execution of Warrant of Attachment and Warrant of Possession.
Put up for further proceedings on 18.07.2014.
Execution no. 43/14Mrs. Renu Sharma & Anr vs. Meena Choudhary Page no. 10 of 16
13. It transpires from above that after dismissal of application moved by applicant / judgment debtor the court directed execution of warrant for possession by affording police help to the non applicant / decree holder. Subsequent thereto an application was moved by applicant / judgment debtor for review of order dated 04.07.2014 and the Ld Predecessor dismissed the application and also recorded categorically that the applicant / judgment debtor could not produce suitable evidence in support of being lawful owner of the suit property. The relevant extract of the order dated 27.09.2014 is reproduced for ready reference :
4. Even during the course of arguments this court has asked from the applicant about the ownership of the suit property since she has been claiming to be the owner and in possession of the suit premises, but she has failed to produce even a single document to prove that she is the owner of suit property. Applicant has been challenging the gift deeds of the respondent without proving her right or title over the suit property which cannot be allowed.
Further, she has claimed that she got the possession of the suit property in lieu of some amount due towards Sh. S.N. Sharma who was stated to the owner of this suit property, but again applicant has failed to produce any such document regarding it. As such applicant has failed to prove any document to establish her right over the suit property. Besides it, it is revealed from the record of the proceedings noted down by previous courts that she had claimed herself to be a guest in the guest house and it was duly considered by the Ld. Predecessor Court which suggests that she has no right to challenge the orders and merely observation of the Execution no. 43/14 Mrs. Renu Sharma & Anr vs. Meena Choudhary Page no. 11 of 16 Hon'ble High Court or the Hon'ble Supreme Court of India in writ petition about the facts of the case is not sufficient to assume that the applicant is an owner of the suit property. In fact, all the plea taken by the applicant are not sustainable hence all the applications moved by the applicant are hereby dismissed.
14. It transpires from record that objections were thereof rejected and execution was proceeded with. All the applications of applicant / judgment debtor were disposed of being devoid of any merits. The applicant / judgment debtor has been dispossessed of the suit property by following due procedure laid in the provisions enumerated u/o 21 of CPC.
15. Order 21 of CPC deals generally with the execution of Decrees and Orders. The order is divided into several topics, each topic containing a number of Rules. Stay of execution comprises 4 Rules, namely Rules 26 to 29. Rules 26 to 28 deals with the powers and duties of a Court to which decree has been sent for execution. Under Rule 26, the Court can stay the execution of a decree transferred to it for execution for a reasonable time to enable the judgment debtor to apply to the Court by which the decree was passed or to any Court having appellate jurisdiction over the former for an order to stay execution or for any other order relating to the decree or execution which might have been made by the court of first instance or the appellate court. Moreover, under sub rule (2) if any property is seized by it in course of execution, it may even order the restitution of property pending the result of application made by the judgment debtor to the court of first instance or to the appellate court. Rule 27 lays that any such restitution made under sub rule (2) of Execution no. 43/14 Mrs. Renu Sharma & Anr vs. Meena Choudhary Page no. 12 of 16 rule 26 will not prevent the property of judgment debtor from being retaken in execution of decree sent for execution. Rule 28 provides that any order of the Court by which the decree was passed, in relation to the execution of such decree, shall be binding upon the court to which the decree was sent for execution. Rule 29 provides that where a suit is pending in any Court against the holder of a decree of such Court, on the part of the person against whom the decree was passed the court on such terms as to the security or otherwise, as it thinks fit stay execution of decree until the pending suit has been decided. A perusal of rules reveals that there should be simultaneously two proceedings in one Court.
16. The gamut of order 21 rule 29 of CPC has been under consideration of various higher courts on different aspects. This rule is provided to avoid multiplicity of suit in a circumstance where the judgment debtor has also initiated some action in the form of suit against the decree holder. The court in its discretion if finds that sufficient cause exists can stay the execution of the decree however, the general rule is a decree holder cannot be prevented to enjoy the fruits of judgment already passed in its favour. There must exist a strong reason which necessitated the stay of execution. If the execution proceedings are stayed on flimsy grounds that no execution proceedings would ever be taken to logical conclusions.
17. In recent judgment Balammal & ors vs. Muthiar Begum and Anr 2013 (5) CPC 154 Hon'ble High Court of Madras elaborately discussed the aforesaid rule and concluded that merely because judgment debtor has filed a fresh suit for Execution no. 43/14 Mrs. Renu Sharma & Anr vs. Meena Choudhary Page no. 13 of 16 possession of same premises which has been decreed in favour of decree holder, execution could not be stayed by invoking order 21 rule 29 of CPC. A reference is also made to the case of Yasodamaa vs. S. Anjaiah, 1986 (1) Alt 93 Hon'ble Court held the purpose behind order 21 rule 29 of CPC as under :
"The intentment behind Order 21 Rule 29 CPC is the prevention of multiplicity of proceedings and to ensure that plaintiff can set off or wipe out any amount due by him towards any amount to to him. If the title to the property or possession remains the same, the judgment debtor cannot resort to Order 21 Rule 29 CPC merely because he has not put forward a plea which was open to him at the time when the decree was obtained against him earlier. If such resort to Order 21 Rule 29 of CPC is permitted, it would enable judgment debtors to by pass the provisions of constructive res judicata incorporated in Section 11 of CPC and protract the execution proceedings endlessly."
18. In the above background, the applications of applicant / judgment debtor are considered and it is seen that the contents and the grounds are para materia similar to the objections raised at the time of executing warrant of possession which were disposed vide order dated 31.05.2014. The same set of arguments were again taken in the review petition u/s. 114 of CPC which was been disposed vide order dated 27.09.2014 considering each and every arguments raised by applicant / judgment debtor as referred above. Now the present applications do not disclose any fresh reason which could be qualified as sufficient cause as contemplated under the provisions. It is a matter of record that the suit bearing no. 778/11 was instituted on 18.11.2011 and suit was decreed on 15.02.2012. An application for setting aside judgment dated 15.02.2012 was dismissed on Execution no. 43/14 Mrs. Renu Sharma & Anr vs. Meena Choudhary Page no. 14 of 16 31.05.2014. The appeal challenging the order dated 31.05.2014 was dismissed on 07.11.2014. The execution petition was preferred by non applicant / decree holder on 04.02.2014. It is undisputed fact that after disposal of objections / applications / appeal, a separate suit for cancellation of instrument, declaration of title and permanent injunction with respect to suit property was filed on 27.11.2014. Merely because subsequently a fresh suit has been filed, the execution proceedings cannot be stayed, more so when the possession of the suit premises has already been given to the non applicant / decree holder and under such circumstances provisions as enumerated under order 21 of CPC could not come to the rescue of applicant / judgment debtor and under the garb of these provisions decree cannot be reopened. These provisions are not meant to unsettle the issues which have attained finality. There is nothing left in the execution which could be stayed at this stage, therefore, all the applications moved by the applicant / judgment debtor are hereby dismissed. During the course of arguments, the non applicant / decree holder has stated that non applicant / decree holder is not pressing upon release of articles to the applicant / judgment debtor. Therefore superdar is directed to handover the articles of the applicant / judgment debtor after due acknowledgment and against proper receipt. It is relevant to mention here that applicant / judgment debtor has objected to the inventory of the articles prepared at the time of execution of warrant of possession. In this regard a separate statement of bailiff on 03.11.2014 was recorded who categorically endorsed that due procedure was followed and inventory of articles was prepared. The applicant / judgment debtor has filed a lengthy list of articles alleged to have been taken by bailiff in the execution proceedings but the claim has remained unsubstantiated. The contention of applicant / judgment debtor Execution no. 43/14 Mrs. Renu Sharma & Anr vs. Meena Choudhary Page no. 15 of 16 is based upon conjectures and surmises and cannot be relied upon for want of cogent and convincing proof. The superdar is directed to hand over the articles to the applicant / judgment debtor on her approaching for the same under intimation to this Court. In view of above discussion the applications moved by applicant / judgment debtor stands rejected.
(Vineeta Goyal) Additional District Judge01, NDD/PHC/New Delhi/28.01.2016 Execution no. 43/14 Mrs. Renu Sharma & Anr vs. Meena Choudhary Page no. 16 of 16