Delhi High Court - Orders
Brij Bhushan Bagga vs Dewan Chander Batra & Ors on 22 March, 2021
Author: Jyoti Singh
Bench: Jyoti Singh
$~40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EX.F.A. 6/2021 & CM Nos. 8117/2021, 8118/2021
BRIJ BHUSHAN BAGGA ..... Appellant
Through: Mr. Shashank Garg, Mr. Aman Gupta
& Mr. Parangat Pandey, Advocates
versus
DEWAN CHANDER BATRA & ORS. ..... Respondents
Through:
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
ORDER
% 22.03.2021 By way of present appeal, the appellant assails the impugned order dated 03.06.2019 whereby the objections by the Appellant filed before the Executing Court have been dismissed.
Learned counsel for the Appellant submits that his brother/Respondent No. 3 had assailed the decree on the basis of the Sale Deed dated 09.03.1999, whereas insofar as the Appellant is concerned, his right to the suit property arises on the basis of an Agreement to Sell executed in his favour on 16.06.1996 to which only the Appellant was a signatory.
Learned counsel further submits that the Appellant has been in continuous possession of the suit property since the date of the Agreement and continues to be in possession till date. Appellant was unaware of the pending litigation in which his brother had chosen to assail the Decree unsuccessfully upto the Supreme Court and therefore, the Appellant had an independent right of being heard by the Executing Court on the objections. In support of this, Mr. Shashank relies on the judgement in the case of Har Vilas vs. Mahendra Nath & Ors. (2011) 15 SCC 377 in which reliance was placed on the judgement in Shreenath vs. Rajesh (1998) 4 SCC 543, relevant part of which is extracted hereinunder:
"4. The Full Bench decision of the Madhya Pradesh High Court in Usha Jain case [AIR 1980 MP 146 : 1980 MPLJ 429 (FB)] has been overruled by this Court in Shreenath v. Rajesh [(1998) 4 SCC 543] . It has been held that a third person claiming to be in possession of the property forming the subject-matter of decree in his own right can resist delivery of possession even by filing an objection under Order 21 Rule 97 of the Code of Civil Procedure in the executing court itself and if that is done, the objection shall have to be determined by the executing court itself. The provisions of Rule 100 (of the old CPC, the equivalent provision whereof is Rule 99 in the new CPC) will not defeat the right of such person to get his objection decided under Rule 97 which is a stage prior to his dispossession. In view of the decision of this Court in the case of Shreenath [(1998) 4 SCC 543] the impugned view of the High Court based on the Full Bench decision of the High Court of Madhya Pradesh in the case of Usha Jain [AIR 1980 MP 146 : 1980 MPLJ 429 (FB)] cannot be sustained.
Learned counsel also relies on a judgement of the Coordinate Bench of this Court in Vijay Gurnani vs. Panna Lal Rathore & Ors., more particularly, paragraph 6 and submits that the Trial Court ought to have treated the objections in the Execution as a suit. Relevant para reads as under:-
"6. In my opinion, the appellant is entitled to succeed. The objections were admittedly filed under Order XXI Rules 96 to 103 CPC, and in which issue was to determine as to whether the objector Sh. Vijay Adlakha had an independent title. It was because the objector Sh. Vijay Adlakha was not made party to the suit which was decreed as per the judgment and decree dated 16.8.2010 in favour of the appellant/plaintiff/decree holder with respect to the suit property, that by the order of this Court dated 29.9.2014 objections were allowed to be filed and which were to be decided in terms of the procedure specified in Order XXI Rules 96 to 103 CPC. Learned senior counsel for the appellant has rightly argued that the objections are in the nature of the suit itself because objections are decided as per the procedure for deciding a suit i.e. after completion of pleadings and as per the admitted facts on record. It is argued that no evidence is required to be led in this case since the objections can be decided on admitted facts appearing on record, and hence the impugned judgment has to be set aside because even a suit can be decided either under Order XII Rule 6 without leading evidence or the suit can be decided at the stage of issues when only a legal issue arises i.e. there are no disputed facts requiring trial. As per admitted facts on record, it is argued by the appellant, that the objector Sh. Vijay Adlkaha has clearly failed to prove any valid and existing title to the suit premises and therefore the impugned judgment allowing objections is to be set aside."
Learned counsel also submits that since the Appellant is in possession, therefore the Decree whereby a direction is only issued for execution of the Sale Deed is unexecutable. He relies in support of the proposition on the judgement in Durga Prasad & Ors. vs. Deep Chand & Ors. AIR 1954 SC 75.
Issue notice to the Respondents, through all permissible modes, on the Appellant taking requisite steps, returnable on 22nd April, 2021.
JYOTI SINGH, J MARCH 22, 2021 rd