Punjab-Haryana High Court
Omesh Goel And Others vs Shiv Kanwar Singh Sandhu And Another on 2 March, 2012
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
C.R. No. 2575 of 2011 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CR No. 2575 of 2011
Date of Decision: March 2, 2012
Omesh Goel and others
.....Petitioners
Vs.
Shiv Kanwar Singh Sandhu and another
.....Respondents
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr. Chetan Mittal, Sr. Advocate with
Mr.Vishal Garg, Advocate
for the petitioners.
Mr.K.S. Ahluwalia, Sr. Advocate with
Mr.I.P.S. Mangat, Advocate,
for the respondents.
-.-
M.M.S. BEDI, J.
Petitioners in the present revision petition are decree-holders in a suit for specific performance of 1/8th share of property in dispute which is House NO. 225, Sector 9-C, Chandigarh. Suit of the plaintiff- petitioners was decreed vide judgment and decree dated September 25, 1998, passed by Civil Judge (Senior Division), Chandigarh, directing the judgment debtor C.R. No. 2575 of 2011 [2] Ms.Meera Kapur to get the sale deed registered and executed in favour of plaintiff- petitioners on payment of balance sale consideration of Rs.23 lacs in respect of 1/8th share of defendant- judgment debtor in the abovesaid house as per agreement of sale dated July 13, 1994. The said decree was upheld till the Hon'ble Supreme Court in the year 2004.
In order to resist the delivery of possession by the judgment debtor, objection petition was filed by one Jasbir Singh Dodhi, who was attorney of judgment debtor Meera Kapur claiming himself to be tenant. His objections were dismissed vide order passed by the Executing Court dated June 15, 2007. The appeal filed by said objector was dismissed by the Appellate Court vide judgment dated August 24, 2007. An appeal ESA No. 6 of 2006 was also dismissed vide order dated August 30, 2007. Said order was finally affirmed in SLP. The objector- respondent No.1 Shiv Kanwar Singh Sandhu filed objections claiming himself to be a tenant of Meera Kapur in the year 1997, relying upon a rent note dated October 1, 1997, executed through general power of attorney Jasbir Singh Dodhi. The objections filed by respondent No.1 were dismissed on April 12, 2010 by the Executing Court on the ground that as per provisions of Order 21 Rule 98 (2) CPC and as per provisions of Order 21 Rule 102 CPC, the objections were not maintainable as the objector claimed delivery of possession during the pendency of the suit.
Vide impugned order dated February 7, 2011, learned Additional District Judge, Chandigarh, has considered the appeal of the C.R. No. 2575 of 2011 [3] objector- respondent No.1 against order dated April 12, 2010 and remanded the matter to the Executing Court to decide the objections of respondent No.1 afresh after giving opportunity to the parties to lead evidence on the issues which are reproduced hereunder:-
"1. Whether part of the house in question is already in possession of the DHs and part of the property in possession with the tenant, if so its effect? OPO
2. Whether DHs have already taken the possession of the part of the house during the pendency of the execution petition and decree stands satisfied? OPO.
3. Whether DHs have stepped into the shoes of the JD on the execution of the sale deed and objector had become tenant of the DHs? OPO
4. Whether DHs are entitled to joint possession of 1/8th share in the entire housed and are not entitled for specific performance of the house in pursuance of the decree dated 25.9.1998? OPO.
5. Whether portion in possession of the objector as tenant is subject matter of the suit which culminated in decree dated 25.9.1998 ? OPO
6. Whether transfer of the possession of portion in House No. 225, Sector 9-C, Chandigarh in favour C.R. No. 2575 of 2011 [4] of the objector as tenant is hit by lis-pendence ? OPDH.
7. Whether objection petition is not maintainable?
OPDH.
8. Relief."
Aggrieved by the abovesaid order passed by the lower Appellate Court, the decree-holders have preferred this revision petition claiming that the lower Appellate Court has ignored the legal position that objection petition is nothing but an abuse of the process of law.
Mr.Chetan Mittal, learned Senior Advocate for the petitioners has urged that objector- respondent is merely a transferee pendente lite, therefore, the objections are clearly barred under Order 21 Rule 97 CPC on account of the provisions of order 21 Rule 102 CPC. He urged that the objector claimed tenancy during the pendency of the suit for specific performance and that the Executing Court had dismissed the objections being not maintainable. The said decision cannot be said to be an adjudication under Order 21 Rule 98 CPC. It was only after dispossession that the respondent could have filed an objection under Order 21 Rule 99 CPC. His objections could have been adjudicated upon under Order 21 Rule 100 CPC. Had any adverse order been passed against respondent No.1, he would have filed an appeal under Order 21 Rule 103 CPC. It was claimed that as the Executing Court had dismissed the objections without adjudication, therefore, the appeal was not maintainable. It was contended C.R. No. 2575 of 2011 [5] that the lower Appellate Court has not decided the non-maintainability of the objections under Order 21 Rule 97 CPC of a person who is a transferee pendente lite . He relied upon Usha Sinha Vs. Dina Ram and others, (2008) 7 SCC 144, in which it was held that a person purchasing property from the judgment debtor during the pendency of the suit has no independent right to resist or obstruct the execution of the decree. He also relied upon Silverline Forum Pvt.Ltd. Vs. Rajiv Trust and another, (1998) 3 SCC 723 to contend that resistance or obstruction by "any person"
to delivery of possession can be adjudicated upon only when questions legally arise between the parties to the proceedings and are relevant to adjudication. It was urged that the resistance offered by the respondent- objector was absolutely uncalled-for and is abuse of the process of the Court as such the order passed by the lower Appellate Court should be set aside and that of the Executing Court should be restored and the objections of respondent No.1 should be dismissed as not maintainable.
Mr.Kanwaljit Singh, learned Sr. counsel for the objector has vehemently urged that the decree passed by the trial Court in favour of decree holder Meera Kapur was for execution of the sale deed regarding her share to the extent of 1/8th. There was no relief of delivery of suit property as such relying upon Adcon Electronics Pvt. Ltd. Vs. Daulat and another, AIR 2001 SC 3712, it was argued that when suit for specific performance of an agreement of sale of suit property is decreed and the relief of delivery of suit property has not been specifically claimed, it cannot be treated as a suit C.R. No. 2575 of 2011 [6] for delivery of possession. He also relied upon Shreenath and another Vs. Rajesh and another, AIR 1998 SC 1827 to contend that a third person in possession of a property claiming independent right as tenant being not a party to the suit in possession, is entitled to resist decree by seeking adjudication of his objection under Order 21 Rule 97 CPC and that it was mandatory for Executing Court to adjudicate the objections finally under Order 21 Rule 101 CPC. He also relied upon Brahmdeo Choudhary Vs. Rishikesh Prasad Jaiswal, 1997 (1) RCR 332, in support of his contention that right of a stranger has to be decided by Executing Court after giving opportunity of hearing to a stranger and decree holder when execution of a decree for possession of property is sought for by the decree holder. It was argued that a stranger has got a right under Order 21 Rule 97 (1) CPC in case he is able to establish that he is in actual legal possession. Learned counsel referred to the observations in Brahmdeo Choudhary's case (supra) observing that once an obstruction by third party is on the record of the Executing Court, it is difficult to appreciate how the Executing Court can tell such obstructionist that he must first loose possession and then only his remedy is to move an application under Order 21 Rule 99 CPC and pray for restoration of possession. He also relied upon Tanzeem-e-Sufia Vs. Babi Haliman and others, 2002 (2) Apex Court Judgments 245 (SC) in which it was held that third party objector under Order 21 Rule 97 (1) CPC has to be heard on the application before passing any order and that it is not the mandate of law that possession be handed over first and an application C.R. No. 2575 of 2011 [7] under Order 21 Rule 99 CPC be moved later on complaining about dispossession.
After hearing learned counsel for the decree holders as well as counsel for objector and going through the judgment passed by the Executing Court dismissing the objections being not maintainable, the objector being prima facie a transferee during the pendency of the suit and the judgment of the lower Appellate Court holding that in view of ambiguity in the judgment and decree sought to be executed whether decree holders are entitled to joint possession or separate possession and the property prima facie in possession of the tenant can not be said to be the subject matter of the suit for specific performance and only 1/8th share of Smt.Meera Kapur being subject matter of the suit, the inducting of objector as tenant in the joint property being not hit by principle of lis pendence. After going minutely through the facts and circumstances of the case and appreciating the legal contentions of counsel for both the parties, this Court is prima facie of the opinion that plaintiff- petitioners had obtained a decree for specific performance of 1/8th share in the house in dispute. Whether the relief of possession granted by the Court for 1/8th portion of the house could be considered to be a decree for possession or separate possession or partition in addition to decree for specific performance as per provisions of Section 22 of the Specific Relief Act, requires to be determined in the light of the specific wording in the decree. Whether part of the property in dispute is already in possession of the decree holder; whether the transfer of C.R. No. 2575 of 2011 [8] possession of property in dispute in favour of objector as tenant is hit by principle of lis pendence; whether the objection petition is merely a device to obstruct the execution of the decree by a judgment debtor who has got only 1/8th share in the house in dispute, are the relevant points for determination. The disputed questions of fact and law raised by both the parties required to be determined expeditiously by enabling the parties to produce relevant material in support of their claims on the issues framed by the lower Appellate Court. There also appears to be force in the contention of learned counsel for the petitioners that an attempt is being made by the judgment debtor to hamper the execution of the decree for specific performance and delivery of possession. The fact cannot be ignored that the execution of the decree has been delayed for a petty long time by the third party objector who claimed itself to be in possession as a tenant. No doubt, the objector has got a right to get his claim adjudicated when he is sought to be dispossessed by decree holder. It is also settled principle of law as laid down in Shreenath's case (supra)that he need not wait until he is dispossessed. It certainly is a case where one of the parties to the litigation is wrongfully gaining time by adopting permissible legal objections, in such circumstances, the Hon'ble Apex Court in Shreenath's case (supra) observed as follows:-
"The seekers of justice many a time has to take a long circuitous routes, both on account of hierarchy of Courts and the procedural law. Such persons are and can C.R. No. 2575 of 2011 [9] be dragged till the last ladder of the said hierarchy for receiving justice but even here he only breaths fearness of receiving the fruits of that justice for which he has been aspiring to receive. To reach this stage is in itself an achievement and satisfaction as he, by then has passed through a long arduous journey of the procedural law with many hurdles replica of mountain terrain with ridges and furrows. When he is ready to take the bite of that fruit, he has to pass through the same terrain of the procedural law in the execution proceedings the morose is writ large on his face. What looked inevitable to him to receive it at his hands distance is deluded back into the horizon. The creation of hierarchy of Courts was for a reasonable objective for conferring greater satisfaction to the parties that errors, if any, by any of the lower Courts under the scrutiny of a higher Court be rectified and long procedural laws also with good intention to exclude and filter out all unwanted who may be the cause of obstruction to such seekers in his journey to justice. But this obviously is one of the causes of delay in justice. Of course, under this pattern the party wrongfully gaining within permissible limits also stretches the litigation as much as possible. Thus, this has been the C.R. No. 2575 of 2011 [10] cause of anxiety and concern of various authorities, Legislators and Courts. How to eliminate such a long consuming justice? We must confess that we have still to go long way before true satisfaction in this regard is received. Even after one reaches the stage of final decree, he has to undergo a long distance by passing through the ordained procedure in the execution proceedings before he receives the bowl of justice.
The Courts within its limitations have been interpreting the procedural laws so as to conclude all possible disputes pertaining to the decretal property which is within its fold in an execution proceeding i.e., including what may be raised later by way of another bout of litigations through a fresh suit. Similarly legislatures equally are also endeavouring by amendments to achieve the same objective. The present case is one in this regard. Keeping this in view, we now proceed to examine the present case.
In interpreting any procedural law, where more than one interpretation is possible, the one which curtails the procedure without eluding the justice is to be adopted. The procedural law is always subservient to and C.R. No. 2575 of 2011 [11] is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed."
Adopting the abovesaid observations, this Court is of the opinion that in the interest of justice, the dispute between the parties has to be finally adjudicated upon by the Executing Court in order to curtail any further litigation by separate suits. It will be expedient in the interest of justice if the controversy raised by the objector is finally adjudicated upon by the Executing Court. No doubt, framing of issues in all the objections filed before the Executing Court is not the rule but in certain exceptional cases, where serious triable issues are involved which could be adjudicated upon by permitting the parties to produce material, in such cases the framing of issues is not an irregularity. No ground is thus made out to interfere in the order passed by the lower Appellate Court in framing the issues.
Dismissed.
Dismissal of this revision petition will not, in any manner, prejudice the rights of the parties and nothing said in this order will be deemed to be an expression of opinion on merits of the case. In the interest of justice it is ordered that Executing Court will make earnest endeavour to decide the objections by giving fair opportunity to both the parties and conclude the adjudication of the objections preferably within a period of six months after the receipt of a certified copy of this order.
March 2, 2012 (M.M.S.BEDI)
C.R. No. 2575 of 2011 [12]
sanjay JUDGE