Madhya Pradesh High Court
Dilip Mehta vs Rakesh Gupta on 27 February, 2023
Author: Vishal Dhagat
Bench: Vishal Dhagat
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
WRIT PETITION No.22367 of 2022
Between:-
DILIP MEHTA S/O LATE DHEERAJ MEHTA,
AGED ABOUT 67 YEARS, OCCUPATION:
PROP. RAJUL BUILDERS O/O RAJUL
BUILDERS RAJUL ARCADE, RUSSEL
CHOWK, JABALPUR M.P. (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI SANKALP KOCHAR - ADVOCATE)
AND
1. RAKESH GUPTA S/O GOPAL DAS GUPTA
OCCUPATION: BUSINESS R/O 848, JDA
GROUND SHANTI NAGAR JABALPUR M.P.
(MADHYA PRADESH)
2. NEERAJ JAIN S/O SURESH JAIN
OCCUPATION: BUSINESS R/O 1063
NARSING WARD AMANPUR JABALPUR
(MADHYA PRADESH)
3. VIRENDRA PATEL S/O RAJENDRA
AMGAONKAR OCCUPATION:
AGRICULTURE R/O GRAM SALIWADA
MANDLA ROAD JABALPUR (MADHYA
PRADESH)
....RESPONDENTS
(SHRI KISHORE SHRIVASTAVA - SENIOR ADVOCATE WITH
SHRI MALIKARJUN KHARE - ADVOCATE FOR RESPONDENTS
WP No.22367 of 2022
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NO.1 & 2, SHRI SHASHANK VERMA - ADVOCATE FOR
RESPONDENT NO.3 AND SHRI PANKAJ DUBEY - ADVOCATE
FOR INTERVENER )
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Reserved on : 23.01.2023
Delivered on : 27.02.2023
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This petition having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced the
following:
ORDER
Petitioner has filed this writ petition under Article 226 of the Constitution of India challenging compromise decree dated 14.05.2022 passed in RCS No.229-A/2022 by Lok Adalat, Jabalpur.
2. Virendra Patel who is respondent No.3 in this petition had entered into an agreement to sale with respondent No.1 namely Rakesh Gupta on 21.01.2009. Virendra Patel is power of attorney holder on behalf of owner Siya Bai granted to him on 29.11.2008.
3. Respondents No.1 and 2 namely Rakesh Gupta and Neeraj Jain filed civil suit No.229-A/2022 against respondent No.3 namely Virendra Patel for specific performance of contract. In said suit a joint application was filed by plaintiffs and defendant under Order 23 Rule 3 of the CPC for passing of decree on basis of compromise. On basis of said application, statements of parties were recorded. Factum of compromise was verified and application was allowed and decree was prepared WP No.22367 of 2022
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accordingly. Registered sale deed was executed in favour of respondent No.1 on basis of decree dated 14.05.2022 by respondent No.3 in Office of Sub-Registrar, Jabalpur on 22.07.2022.
4. Learned counsel appearing for petitioner submitted that decree dated 14.05.2022 was obtained from Lok Adalat by playing fraud. FIR has also been registered against Virendra Patel whose actual name is Virendra Amgaonkar. It is submitted that later on original owner of land in question namely Siya Bai had filed a civil suit against respondent No.3 bearing No.12-A/2013 for declaring power of attorney dated 29.11.2008 and sale deed dated 12.06.2009 to be null and void before trial Court. Another suit has been filed by Ganga Prasad, Ashish, Manish, Girish Kuraria for permanent injunction against Siya Bai in respect of same property. Counsel for petitioner submitted that power of attorney dated 29.11.2008 and sale deed dated 12.06.2009 are forged and fabricated document. Respondents had played fraud upon Court and had obtained order from Lok Adalat, therefore, prayer is made for quashing of judgment and decree dated 14.05.2022 and also to quash execution proceedings in said case. It is submitted that award passed by Lok Adalat under Legal Service Authorities Act, 1987 become final and cannot be challenged in appeal. Said award can be set aside by this Court exercising its power under Article 227 of the Constitution of India.
5. Respondents have raised preliminary objection that petition involves disputed and complicated questions of facts which cannot be adjudicated in this writ petition under Article 226 of the Constitution of India. Petitioner has suppressed material facts that order dated 14.05.2022 WP No.22367 of 2022
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is also under challenge in Civil Suit No.229-A/2022, therefore, writ petition is not maintainable. Petitioner has also filed an objection in execution case. Prayer for stay was dismissed by executing Court directing parties to maintain status quo on 22.09.2022. Petitioner is having efficacious and alternative remedy available to him and remedy was also exercised by filing objections. In view of same, writ petition is liable to be dismissed.
6. Heard the counsel for the parties on question of preliminary objections.
7. In preliminary objection, which is filed under Order 21 Rule 101 read with Section 151 of the Code of Civil Procedure, petitioner-Objector has made a prayer that judgment and decree dated 14.05.2022 passed in RCS No.229-A/2022 be set aside as same has been obtained by playing fraud. Same prayer is made by petitioner in this writ petition.
8. Relevant provision of Code of Civil Procedure under Order 21 Rules, 97, 99, 101 and Section 22-E of Legal Services Authorities Act, 1987 are quoted as under:-
"97. Resistance or obstruction to possession of immovable property.- (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. [(2) where any application is made under sub- rule (1), the Court shall proceed to adjudicate upon the WP No.22367 of 2022
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application in accordance with the provisions herein contained.}
99. Dispossession by decree-holder or purchaser.- (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
101. Question to be determined.- All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."
"22E. Award of Permanent Lok Adalat to be final.-
(1) Every award of the Permanent Lok Adalat under this Act made either on merit or in terms of a settlement agreement shall WP No.22367 of 2022
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be final and binding on all the parties thereto and on persons claiming under them.
(2) Every award of the Permanent Lok Adalat under this Act shall be deemed to be a decree of a civil court.
(3) The award made by the Permanent Lok Adalat under this Act shall be by a majority of the persons constituting the Permanent Lok Adalat.
(4) Every award made by the Permanent Lok Adalat under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding.
(5) The Permanent Lok Adalat may transmit any award made by it to a civil court having local jurisdiction and such civil court shall execute the order as if it were a decree made by that court."
9. Order 21 Rule 101 of the Code of Civil Procedure lays down that all questions including questions relating to right, title or interest in property arising between the parties to a proceeding on an application under Order 21 Rule 97 and Rule 99 or their representatives and relevant to adjudication of the application shall have to be determined by the Court dealing with the application. Though, petitioner is not party to the civil suit filed but Order 21 Rules 97 and 99 lays down that when there is any resistance or obstruction to possession of immovable property by any person then decree holder may make an application to Court complaining of such resistance or obstruction. Further Order 21 Rule 99 lays down that any person other than judgment debtor may also make an application to Court complaining of such dispossession, therefore, third party can WP No.22367 of 2022
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also filed an application under Order 21 Rule 101 of the CPC, 1908 read with Order 21 Rule 99 for raising all questions relating to right, title or interest in property arising between parties to a proceeding on an application under Rules 97 or 99. In view of same, application filed by petitioner objecting to decree is maintainable and Court executing the decree is entitled to consider all questions relating to right, title or interest in property.
10. Legal Services Authorities Act, 1987 provides that award passed by Lok Adalat shall be final. Such orders, judgment, decree or award which are passed by Lok Adalat when compromise is done by parties in accordance with Act are final but if fraud is played then said order or award is not final and Bar under Section 22-E of Act of 1987 will not operate and executing Court can consider and decide all the questions arising between the parties. Questions which are raised by petitioner cannot be considered in writ petition as it involves complicated question of facts which is to be adjudicated after considering evidence adduced by the parties.
11. Section 22(E) of Legal Services Authorities Act, 1987 provides that every award passed by permanent Lok Adalat under this Act in terms of settlement, agreement shall be final and binding on all parties thereto and on persons claiming under them. Further Section 22(E)(4) provides that award made by permanent Lok Adalat under this Act shall be final and not be called in question in any original suit, application or execution proceedings. Bar under Section 22(E)(4) is not applicable in present case as there was no agreement or settlement between petitioner and WP No.22367 of 2022
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respondents herein. Settlement is between respondents. Further civil suit is filed by original owner for cancellation of power of attorney as well as sale deed. Settlement or agreement which has been entered in Lok Adalat will not be binding on original owner and Section 22(E) also does not provide for the same. There will be no Bar of Section 22(E)(4) of Legal Services Authorities Act, 1987 for filing an application, suit or execution proceeding against award passed in Lok Adalat dated 14.05.2022 as petitioner and original owner are not party and there is allegation of forgery against respondents.
12. In view of aforesaid, writ petition filed by petitioner is disposed off with liberty to petitioner to avail remedy available to him under the law against award dated 14.05.2022.
(VISHAL DHAGAT) SHABANA Digitally signed by SHABANA ANSARI JUDGE shabana DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=4bc06f2e678b75148b60bb7947ee9ffc5ed27ef1f43a5d4d93d2d13dda5 ANSARI 10735, pseudonym=B646F86821C200C9792A53984F1D0790135DE39A, serialNumber=8A5E15A33816E651B4DB52BF3225281EF6C191F68E5EBE90A6E1 01CF42422711, cn=SHABANA ANSARI Date: 2023.02.28 14:32:50 +05'30'