Punjab-Haryana High Court
Jaswinder Singh vs Smt. Sanjogta Nanda on 16 February, 1996
Equivalent citations: (1996)113PLR60, 1996 A I H C 4477, (1996) 1 RENTLR 563, 1996 HRR 279, (1996) 113 PUN LR 60, (1996) 1 RENCR 353, 1996 REVLR 2 48, (1996) 2 LJR 243, (1996) 1 CURLJ(CCR) 458
Author: Sarojnei Saksena
Bench: Sarojnei Saksena
JUDGMENT Sarojnei Saksena, J.
1. The petitioner-tenant has assailed the impugned order dated November 11, 1995, whereby the executing Court has rejected his objections.
2. The facts of the case are that the respondent filed an ejectment petition against the tenant petitioner. The petitioner filed a petition seeking leave to defend, which was refused. There upon eviction petition was decided in accordance with law and order of ejectment was passed against the petitioner. When this ejectment decree was being executed, the petitioner submitted objections Annexure P-1. The landlord-respondent submitted reply Annexure P-2. The petitioner filed replication Annexure P-3. Rejecting the petitioner is, objections the executing Court passed the order Annexure P-4.
3. The main grouse of the petitioner is that he was the tenant of Mukhtiar Singh, who is a non-Resident Indian (NRI) as he is residing in Canada. The respondent has alleged that he purchased the suit property through Mukhtiar Singh's general attorney Balwinder Singh by a registered sale deed dated July 15, 1994. Before selling the suit house Mukhtiar Singh being a NRI was required to take permission of the Reserve Bank of India Under Section 31(1) of the Foreign Exchange Regulation Act, 1973 (in short, the Act). As the said requisite permission was not obtained by Mukhtiar Singh before selling the suit property to the respondent, the sale is not legal. Hence the respondent not being legal owner of the suit house was not entitled to file the ejectment petition against the petitioner. Petitioner is entitled to raise this objection in execution proceedings Under Section 47 CPC. In support of his contention, He has relied on Madan Lal and Ors. v. Piara Lal Malhotra, (1975)77 P.L.R. 830 and Ajit Parshad Jain v. N.K. Widhani and Ors., 2 A.I.R. 1990 Delhi 42.
4. In the reply filed to the objections the respondent has averred that against the ejectment order the petitioner filed revision before this Court, which was also dismissed.
5. In the impugned order also, the executing Court has mentioned that the petitioner filed revision against the ejectment order, which was dismissed by this Court. The executing Court further held that such an objection was not raised by the petitioner earlier. Hence he could not be allowed to raise this objection. The Court also held that even if it is assumed that the objection is tenable that Mukhtiar Singh has not obtained the requisite permission, he would be dealt with according to law, but the said circumstances is not relevant in the execution petition.
6. In Maclan Lal's case (supra) it is observed that Section 47 CPC is regarding questions to be determined by the Court executing the decree. According to this section, all questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. That is specifically the provision of Section 47 CPC.
7. In Ajit Parshad Jain's case (supra) while dealing with a case of specific performance of contract, it was objected that the agreement of sale is not valid as it is barred Under Section 31 of the Act. Delhi High Court held that Section 31 of the Act does not place restriction on foreign citizens entering into agreement to sell, transfer etc. immovable property situate in India. This bar is also not absolute and, therefore, such agreement will not be itself become void. Decree for specific performance to sell immovable property could be passed. Objection, if any, as to the permission of Reserve Bank of India can be raised at the stage of execution of sale deed. Thus, it is obvious that the facts of that case are quite different from the facts of the case in hand.
8. No doubt, Section 31 of the Act imposes a bar that an NRI cannot dispose of by sale his property in India without obtaining prior permission of the .Reserve Bank of India. Its penalty is provided Under Section 50 of this Act. If such an NRI contravenes this provision, he is liable to penalty Under Section 50 and liable to prosecution for committing this offence Under Section 56 of the Act, but there is no provision in this Act which invalidates such a sale deed if it is executed contravening the said provision. Even if the petitioner's objection has any substance that. Mukhtiar Singh is an NRI and without obtaining permission from the Reserve Bank of India he has disposed of the disputed property to the respondent through his attorney and has thereby contravened the provisions of Section 31(1) of the Act, he himself has committed an offence which is punishable Under Section 56, and for this contravention penalty can also be imposed on him Under Section 50 of the Act. But so far as the respondent is concerned, she gets a valid title in the suit property on the basis of the said sale deed.
9. The petitioner being a tenant can assail the derivative title of his landlord Under Section 109 of the Transfer of Property Act, but he failed to raise this objection when he applied for leave to defend and again when he filed revision before this Court. Thus, on the principle of constructive res judicata also his objection petition is not entertainable in the execution proceedings.
10. On the basis of above discussion, in my considered view, the lower Court has rightly dismissed petitioner's objections. There is no merit in this revision. The impugned order is neither illegal nor suffers from any other infirmity. The revision is according dismissed.