Rajasthan High Court - Jodhpur
Smt. Kanta vs . on 12 December, 2014
Author: Arun Bhansali
Bench: Arun Bhansali
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
: ORDER :
S.B. CIVIL WRIT PETITION NO.7123/2011
Smt. Kanta
Vs.
Prem Chand & Ors.
Date of Order :: 12.12.2014
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. J.K. Bhaiya, for the petitioner/s.
Mr. R.R. Nagori, Senior Advocate assisted by
Mr. Alkesh Agarwal, for the respondent/s.
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BY THE COURT:
This writ petition is directed against the order dated 16.3.2011 passed by the trial court, whereby the application filed by the petitioner under Section 151 CPC has been rejected by the executing court.
The facts in brief may be noticed thus : the respondent No.1 Prem Chand filed a suit against Vishnu Dutt for specific performance of contract dated 16.7.1973. The suit was decreed vide judgment and decree dated 26.7.1994, whereafter the execution was laid by decree-holder Prem Chand and during pendency of the said execution proceedings, an application under Order XXI, Rule 32 CPC was filed by the decree-holder, seeking possession of the suit property from either (a)- the legal representatives of Brij Lal - the mortgagee, Smt. Ganeshi Devi and Smt. Najo Bai, sub-mortgagees and (b)- the legal 2 representatives of Chunni Lal - the tenant at the time of agreement to sale.
The notice of the application was inter-alia issued to Smt. Ganeshi Devi, who on appearance filed objection under Order XXI, Rule 97 CPC to the execution proceedings. During pendency of the proceedings, Smt. Ganeshi Devi expired on 4.10.2009 and on account of the said death, the executing court by its order dated 9.2.2010 noticed that as objector Smt. Ganeshi Devi has died on 4.10.2009 and no one else has appeared on her behalf, the application has been rendered infructuous.
Thereafter, the present petitioner filed application under Section 151 CPC inter-alia with the averments that notice under Order XXI, Rule 32 CPC was issued to Smt. Ganeshi Devi and objections under Order XXI, Rule 97 CPC were filed by her on 1.4.2006, despite death of the said Smt. Ganeshi Devi, no steps have been taken for bringing her legal representatives on record, provisions of Order XXII CPC are not applicable to execution; Smt. Ganeshi Devi had executed will in favour of applicant - Smt. Kanta in relation to the suit property and therefore, the order dated 9.2.2010 passed by the court deserves to be recalled and instead of Smt. Ganeshi Devi, Smt. Kanta - applicant be impleaded as party.
It was also claimed in the application that before filing of the suit seeking specific performance Vishnu Dutt had by registered mortgage deed dated 14.11.1973, which was registered on 15.12.1973 had mortgaged the property to Brij Lal and the said Brij Lal transferred his rights by deed dated 30.3.1981 in favour of Smt. Ganeshi Devi and Smt. Najo Bai and 3 the said transfer was still effective and Smt. Ganeshi Devi has executed will qua said property in applicant's favour. Ultimately, it was prayed that the order dated 9.2.2010 be recalled and in the objection petition filed by Smt. Ganeshi Devi under Order XXI, Rule 97 CPC read with Section 151 CPC, in place of Smt. Ganeshi Devi, applicant be substituted.
The decree-holder filed reply to the said application and raised objections. It was submitted that the application was not maintainable and the same has been filed malafide by the applicant only with a view to deprive the applicant from getting the fruits of the decree. The provisions of Order XXII CPC are applicable and the objections filed by Smt. Ganeshi Devi have abated. It was also submitted that the mortgage was hit by principles of lis pendens, ultimately it was prayed that application be dismissed.
The trial court after hearing the parties came to the conclusion that the applicant was daughter-in-law of Smt. Ganeshi Devi and therefore, she should have filed an application within 90 days. No sufficient cause has been shown for the delay; as to who all are the legal heirs of Smt. Ganeshi Devi and whether Smt. Ganeshi Devi had right to execute will qua the disputed property has not been determined by any competent court. The objections filed by Smt. Ganeshi Devi were dismissed as infructuous on 9.3.2010 and there was no justification for recalling of the said order and consequently dismissed the application.
It was submitted by learned counsel for the petitioner that the trial court was not justified in dismissing the application filed 4 by the petitioner, inasmuch as, the provisions of Order XXII, Rule 3, 4 & 8 CPC does not apply to proceedings in execution of a decree as provided under Order XXII, Rule 12 CPC and therefore, the delay, if any, had no implication. It was submitted that the dismissal of the application by the trial court as infructuous by order dated 9.2.2010 was, therefore, liable to be recalled and the petitioner be impleaded as party to the said proceedings.
It was also submitted that qua the will executed in favour of the petitioner there is no dispute by any of the legal representatives of Smt. Ganeshi Devi and the respondent has no right to question the same. The decree-holder himself got notices issued under Order XXI, Rule 32 CPC to Smt. Ganeshi Devi and for that reason also the impleadment of the petitioner as legal representative of Smt. Ganeshi Devi was justified and therefore, the order passed by the trial court deserves to be set- aside.
Learned counsel for the respondent vehemently opposed the submissions made by learned counsel for the petitioner.
It was submitted that the decree was passed way back in the year 1994 and for one reason or the other, the decree- holder is being deprived of the fruits of the decree. It was submitted that the provisions of Order XXII CPC apply to an application under Order XXI, Rule 97 CPC and as the legal representatives of Smt. Ganeshi Devi did not come on record after her death, the proceedings stood abated and were rightly dismissed by executing court by its order dated 9.2.2010.
It was further submitted that the application under Section 5 151 CPC for recalling the order dated 9.2.2010 itself was not maintainable and the same was rightly dismissed by the trial court.
Submissions were also made indicating that the original mortgage in favour of Brij Lal was hit by doctrine of lis pendens. It was prayed that the writ petition be dismissed.
Reliance was placed on judgment of this Court in Sheo Prakash & Anr. v. Vishnu & Ors. : SBCWP No.2754/2007 decided on 30.5.2007, order dated 19.11.2007 passed by the Hon'ble Supreme Court in Special Leave to Appeal (Civil) No.11310 of 2007 arising out of the order in the case of Sheo Prakash & Anr. v. Vishnu & Ors. dated 30.5.2007.
I have considered the rival submissions made by learned counsel for the parties.
There is apparently no dispute on the facts of the present case that during pendency of the execution proceedings, decree- holder Prem Chand filed application under Order XXI, Rule 32 CPC r/w Section 151 CPC seeking possession from (a)- Legal Representatives of Brij Lal, the mortgagee and (b)- Legal Representatives of Chunni Lal, the tenant in the suit property regarding which the decree for specific performance was granted in his favour.
In the application, the decree-holder also made reference of sub-mortgage by Brij Lal in favour of Smt. Ganeshi Devi and Najo Bai. On being served, Smt. Ganeshi Devi put in appearance and filed objections under Order XXI, Rule 97 CPC, which remained pending before the executing court and Smt. Ganeshi Devi died on 4.10.2009. Whereafter though several of her 6 relatives were before the executing court as legal representatives of Brij Lal including Sohan Lal, husband of the present applicant Smt. Kanta, no application was filed for bringing on record the legal representatives of Smt. Ganeshi Devi and by order dated 9.2.2010, the application under Order XXI, Rule 97 & 101 CPC r/w Section 151 CPC was treated to have become ineffective rather abated. Whereafter, on 6.7.2010, the present application was filed by the petitioner-applicant under Section 151 CPC seeking recall of the order dated 9.2.2010, which as noticed here-in-before came to be rejected by the executing court.
So far as the applicability of the provisions of Order XXII CPC to execution proceedings are concerned, Order XXII, Rule 12 CPC provides that Rules 3, 4 & 8 CPC shall not apply to proceedings in execution of the decree or order. The Order XXI CPC has been titled as 'execution of decrees and orders' and as provisions of Order XXI, Rule 97 CPC forms part of the said order, on first blush it appears that the provisions of Order XXII CPC do not apply to an application under Order XXI, Rule 97 CPC. However, qua the said provision, an exception appears to have been carved out by the judicial pronouncements wherein it has been held that provisions of Order XXII CPC are applicable to application under Oder XXI, Rule 97 CPC.
This Court in the case of Sheo Prakash (supra) while deciding the writ petition, while approving the view of Allahabad High Court in the case of Arif Abdul Ghani & Ors. v. Shaik Chand & Ors. : 1999 AIHC 831 observed as under:-
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"Having perused the application Annex. 6, I do not find any misrepresentation therein, inasmuch as all that has been pleaded is that Ramdas has expired on 21.2.2002, and legal representatives have not been brought on record, and the proceedings under Order 21 Rule 97 are governed by the provisions applicable to suit, therefore, it abates. In the order dated 25.11.2006 reliance has been placed by the learned trial court on the judgment in Arif Abdul Gani Vs. Saikandra reported in 1999 AIHC
831. A look at that judgment shows that it does consider provisions of Order 22 Rule 12 as well, and takes a view that Order 22 Rule 3 applies with provisions of Order 21 Rule 97. In that view of the matter, I do not find any error in the impugned order dated 25.11.2006 either."
The order passed by this Court was questioned before the Hon'ble Supreme Court by filing Special Leave to Appeal, wherein while dismissing the Special Leave Petition, the Hon'ble Supreme Court in its order dated 19.11.2007 observed as under:-
"ORDER The petitioners are third parties to the execution proceedings.
The original plaintiff filed a suit for eviction and the same was allowed.
Petitioners, who are the heirs and legal representatives of the defendant-tenant, filed an application purported to be under Order 21 Rule 97 of the Code of Civil Procedure. Indisputably, such a proceeding is treated to be a suit for all intent and purport.
The decree-holder died on 21.2.2002. His heirs and legal representatives were not brought on record in the said proceeding. The suit, therefore, abated in terms of order 22 Rule 4 of the C.P.C. Neither any application for setting aside the abatement nor any application for condonation of delay was filed.
An application purported to be under Section 151 of C.P.C. and Order 1 Rule 10 of C.P.C. was filed for impleadment of the petitioners which, if allowed, would mean setting aside the order dated 25.11.2006. The said application having been dismissed by the learned executing Court, a writ petition was filed by the petitioners. By reason of the impugned judgment the said writ petition has also been dismissed.
The learned executing Court as also the High Court, in our opinion, have correctly arrived at the finding that the proceeding initiated by the petitioners being one under Order 21 Rule 97 of the C.P.C., the provisions of Order 22 Rule 3 shall apply. As the said proceeding abated automatically on the expiry of 90 days from the date of death of the decree-holder, application under Section 151 and Order 1 Rule 10 of the C.P.C. was not maintainable. This special leave petition is, hence, dismissed."
The Hon'ble Supreme Court has clearly observed that 8 proceedings under Order XXI, Rule 97 CPC are treated to be a suit for all intent and purport and as in the said case the legal representatives were not brought on record, the same abated in terms of Order XXII, Rule 4 CPC.
The Hon'ble Supreme Court further observed that the executing court and the High Court correctly arrived at the finding that the proceedings initiated by the petitioner being one under Order XXI, Rule 97 CPC, the provisions of Order XXII, Rule 3 CPC shall apply and the same abated automatically on the expiry of 90 days from the date of death of decree-holder.
In view of the above dicta of the Hon'ble Supreme Court and judgment of this Court, the applicability of provisions of Order XXII to proceedings under Order XXI, Rule 97 CPC appears to be no more res integra and are applicable.
As it is well settled that the abatement of proceedings on passage of 90 days from the death of a party is automatic, in view of the fact that Smt. Ganeshi Devi died on 4.10.2009 and her legal representatives were not brought on record, the objections filed by her under Order XXI, Rule 97 CPC abated and it was rightly observed by the executing court that the objections have been rendered ineffective, meaning thereby that the objections had abated.
Once the objections stood abated, the only option left for the petitioner was to file appropriate application under Order XXII, Rule 3 & Order XXII, Rule 9 CPC and as even 60 days period from the date of abatement had also expired, to file application under Section 5 of the Limitation Act, 1963 seeking condonation of delay in filing the application under Order XXII, 9 Rule 9 CPC.
Admittedly, no such applications were filed and on the other hand, the present application under Section 151 CPC for recalling of the order dated 9.2.2010 was filed. The filing of applications under Section 151 CPC in the matters, where specific provisions and limitations have been provided in the CPC and Limitation Act respectively, cannot be entertained and therefore, the executing court was justified in rejecting the application filed by the petitioner under Section 151 CPC.
Even if, the application filed by the petitioner is examined without reference to the fact that the same has been filed under Section 151 CPC, the application does not seek setting aside of abatement and condonation of delay and therefore, the same even otherwise could not be entertained by the executing court.
A submission was made by learned counsel for the petitioner that the petitioner was entitled to file objections under Order XXI, Rule 97 CPC and therefore, the application could have been considered as an objection under Order XXI, Rule 97 CPC.
Suffice it to state that not a word has been stated in the application filed by the petitioner regarding alleged objection regarding execution of the decree and therefore, the plea in this regard being wholly without substance, cannot be sustained.
So far as the submissions made by learned counsel for the parties regarding the fact of execution of mortgage deed and whether the same was effected by the doctrine of lis pendens, as the order passed by the executing court does not give arise to the above aspect, the same does not require determination by this Court.
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Consequently, the order impugned passed by the executing court does not call for any interference and the writ petition filed by the petitioner is dismissed.
(ARUN BHANSALI), J.
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