Delhi District Court
Sh. Kimat Baldev Chibber vs Sh. Daryodh Singh (Deceased) on 12 July, 2013
IN THE COURT OF SH. CHANDER SHEKHAR,
DISTT. & SESSIONS JUDGE (NORTH),
ROOM NO. 401, ROHINI COURTS, DELHI.
ARCT No. 13/13
Sh. Kimat Baldev Chibber
s/o Sh. R.R. Chibber
r/o A1 (back side), Sardar Nagar
Near C.C. Colony, Delhi - 110009. ........Appellant
Vs.
1. Sh. Daryodh Singh (deceased)
Through LR Sh. Daljeet Singh
s/o Late Sh. Daryodh Singh
r/o D2, Sardar Nagar, C.C. Colony
Delhi - 110009
2. Smt. Manoher Kaur (deceased)
Through LRs
(i) Col. Pervinder Singh
(ii) Sh. Kulmanbir Singh
(iii) Smt. Birender Kaur
(iv) Smt. Jaswinder Kaur
All c/o Sh. Daryodh Singh
D2, Sardar Nagar
C.C. Colony, Delhi -110009 ..........Respondents
ARCT No. 13/13 Page 1 of 19
Date of institution : 20.02.2013
Date of clarifications : 01.07.2013
Date of Judgment : 12.07.2013
JUDGMENT
1. This Judgment shall govern the disposal of an appeal u/s 38 of the Delhi Rent Control Act, 1958, against the Order dated 04.01.2013 passed by the Ld. ARC, Rohini Courts, Delhi.
2. The facts briefly stated are that the deceased Sh. Daryodh Singh filed an execution petition against the appellant seeking execution of an eviction order passed against the appellant. Respondent nos. 2 to 5 were shown as decree holders in the memo of parties of the execution petition, however, the execution petition was not signed by the said respondent nos. 2 to 5.
3. It is stated in the appeal that during the pendency of the execution petition, respondent no. 1 expired on 13.03.2012 meaning thereby the sole petitioner to the execution petition expired, consequently, the petition can be further proceeded only after bringing the legal representatives of respondent no. 1 on record.
ARCT No. 13/13 Page 2 of 19
4. It is further stated that one Sh. Daljeet Singh filed an application on 04.05.2012 before the Ld. ARC seeking deletion of the name of respondent no. 1 stating therein that he was previous attorney of respondent nos. 2 to 5. The said Daljeet Singh claimed himself to be the attorney of respondent nos. 2 to 5 and sought permission to pursue the execution petition on behalf of respondent nos. 2 to 5.
5. It is further stated that the appellant/petitioner filed a reply to the said application stating that he has no objection regarding deletion of the name of respondent no. 1 from the arrays of the parties, however, it is further stated that respondent nos. 2 to 5, though mentioned as LRs of Manohar Kaur (one of the decree holders), neither signed the execution petition nor authorized respondent no. 1 to file the execution petition on their behalf, therefore, the said respondents cannot be considered as party to the execution petition and as such, respondent nos. 2 to 5 are not party to the execution petition, therefore, once the name of respondent no. 1 is deleted, the execution petition is liable to be dismissed for nonprosecution. It is further stated in the reply by the appellant that without all the LRs of respondent no. 1 on ARCT No. 13/13 Page 3 of 19 record, the said execution petition cannot be proceeded further.
6. Notice of the appeal was issued to the respondent and the respondent filed his reply thereby opposing the present appeal and relied upon the impugned Order of the Ld. Trial Court dated 04.01.2013.
7. I have heard Ld. Counsels for the parties and have gone through the impugned Order passed by Ld. Trial Court as well as the entire record.
8. Counsel for the appellant submitted that since the execution petition was only signed by respondent no. 1 and there was no attorney of the said alleged LRs in favour of respondent no. 1 to file and pursue the execution proceedings on their behalf, is brought on record meaning thereby the only petitioner in the execution petition is respondent no. 1 and after the death of the said respondent, the execution proceedings stands abated, in the absence of his legal heirs being brought on record.
9. It is further argued by the Ld. Counsel for the appellant that Sh. Daljeet Singh in his application not even whispered about him being LR of respondent no. 1, all that he sought and pleaded is that he may be permitted to prosecute the execution ARCT No. 13/13 Page 4 of 19 petition being attorney of respondent nos. 2 to 5.
10. It is further submitted by Ld. Counsel for the appellant that the Ld. Trial Court has failed to appreciate that respondent nos. 2 to 5 cannot be considered and pursue the execution petition as they have neither singed the petition nor authorized respondent no. 1 to file the petition on their behalf, further there is nothing on record to suggest that they are the legal heirs of late Smt. Manohar Kaur (one of the decree holders), therefore, the power of attorneys in favour of Sh. Daljeet Singh is consequently of no use as the said respondent nos. 2 to 5 are not the petitioners in the execution petition.
11. It is further submitted by the Ld. Counsel for the appellant that the Ld. Trial Court has relied upon the Order XXI Rule 15 and Sec. 146 CPC which provides for filing of an execution petition by one of the decree holders, in case of joint decree holders, which is not in dispute, as in the present petition, the petition is filed by respondent no. 1 being one of the decree holders and also mentioning the names of LRs of the other decree holder, without having any authority on behalf of those persons to file the execution petition. However, after demise of ARCT No. 13/13 Page 5 of 19 the said petitioner, only the LRs of the said decree holder can pursue and prosecute the execution petition and the other decree holder or his LRs cannot prosecute the said execution petition.
12. I have perused the record and it is a fact that one application was filed by Sh. Daljeet Singh on 04.05.2012 which is being reproduced herein below for better appreciation : "APPLICATION ON BEHALF OF THE DECREE HOLDER FOR DELETING THE NAME OF DARYODH SINGH (PREVIOUS ATTORNEY OF APPELLANTS HEREIN) MOST RESPECTFULLY SHOWETH :
1. That in the abovenoted execution petition, the decree holders had constituted, appointed and nominated Daryodh Singh as their attorney to represent them before the Hon'ble Court including pursuing all the legal proceedings on their behalf and said Daryodh Singh had been pursuing all the legal proceedings in respect of suit property on behalf of decree holders in the Courts of Law. Said Daryodh Singh has expired on 13.03.2012 at Delhi, as he was acting as attorney on behalf of decree holders, so there is no need of bringing on record the LRs of late Daryodh Singh.
2. That the decree holders have constituted, appointed and nominated Sh. Daljeet Singh s/o late Sh. Daryodh Singh as their fresh general attorney to pursue all legal proceedings in respect of suit properties already pending or to be instituted before the Hon'ble Courts of Law.ARCT No. 13/13 Page 6 of 19
3. That the amended memo of parties is enclosed herewith.
4. That the amended memo of parties is filed well within the period of limitation.
DECREE HOLDERS THROUGH ( DALJEET SINGH ) GENERAL ATTORNEY OF DECREE HOLDERS THROUGH ( S.B. GOEL & CO. ) ADVOCATE DELHI.
DATED : 03.04.2012"
13. In the reply to this application, the JD has reiterated the objection as stated herein above and prayed to allow the deletion of the name of Sh. Daryodh Singh from the arrays of the parties, however, prayed that rests of the averments regarding permission to Sh. Daljeet Singh to pursue the present execution petition as attorney of the other decree holders cannot be accepted and is liable to be rejected as they have neither signed the petition nor authorized decree holders no. 1 to file the petition on their behalf.
14. Ld. Trial Court vide impugned Order dated 04.01.2013 ARCT No. 13/13 Page 7 of 19 disposed of the application of Sh. Daljeet Singh whereby Sh. Daljeet Singh was seeking permission to prosecute the execution petition as attorney of appellant nos. 2 to 5. There is no dispute that Sh. Daryodh Singh was one of the decree holders and being of the the decree holders, having regard to the provisions of Order XXI Rule 15 CPC, he is competent to institute the execution petition without joining the other decree holders. Hence, I do not find any flaw in the findings of Ld. Trial Court that even if it is assumed that other decree holders had not authorized Sh. Daryodh Singh to initiate the execution proceedings, that would not affect the maintainability of the execution petition.
15. Ld. Trial Court has relied upon Sec. 146 and Order XXI Rule 16 CPC. Sec. 146 CPC provides that where any person is entitled to initiate any proceedings, the said proceedings can be carried out by persons claiming through him. Order XXI Rule 16 CPC provides that where the interest of a decree holder is transferred by assignment or by operation of law, the transferee may apply and prosecute the execution petition.
16. Ld. Trail Court has also relied upon two Judgments i.e. ARCT No. 13/13 Page 8 of 19 Venkatachalam Chetti vs Ramaswami Servai & Anr., (1932) 62 MLJ 1 decided by Hon'ble Madras High Court and V. Uthirapathi vs. Ashrab Ali & Ors, 1998(3) SCC 148 decided by Hon'ble Supreme Court and held that since Sh. Daryodh Singh was competent to file the execution petition as one of the decree holders, Sh. Daljeet Singh is also empowered, as legal heirs of Sh. Daryodh Singh, to prosecute the petition. Ld. Trial Court further held that, for this purpose, it is not necessary for other decree holders to authorize Sh. Daljeet Singh, hence, the denial of the judgment debtor to the execution of General Power of Attorney in favour of Sh. Daljeet Singh is of no effect. Ld. Trial Court further held that, in the given circumstances, Sh. Daljeet Singh is permitted to prosecute the execution petition and the application filed by Sh. Daljeet Singh was accordingly disposed of, however, without prejudice to the right of the objector to canvas his objections.
17. I would like to refer here the further proceedings in this matter which took place on 16.01.2013 when a joint statement of Smt. Berinder Kaur, Sh. Kulmanbir Singh Hundal and Sh. Parvinder Singh Hundal was recorded which is as follows : ARCT No. 13/13 Page 9 of 19
"On S.A. We are the decree holders in this case. We state that we have authorized Sh. Daljeet Singh s/o late Sh. Daryodh Singh to pursue the present execution petition. We had earlier authorized Sh. Daljeet Singh to institute and to prosecute the execution petition. Sh. Daljeet Singh may be permitted to prosecute the execution petition on our behalf.
RO & AC (ASHISH AGGARWAL) ARC/CCJ/ROHINI COURTS NORTHWEST, Delhi/16.01.13"
18. The statement was duly signed by the abovesaid three persons on 16.01.2013. On that day, Ld. Counsel for the objector submitted that the original GPA in favour of Sh. Daljeet Singh is not on the judicial record. However, Smt. Birender Kaur, Sh. Kulmanbir Singh Hundal and Sh. Parvinder Singh Hundal submitted that if directed, they can produce the original GPA today (i.e. on 16.01.2013) itself and they prayed for passing over the case for 1½ hours.
19. I do not want to comment on the later part of the proceedings dated 16.01.2013, in view of the fact that the Ld. Counsel for the objector has tendered his unconditional apology. The fact which emerges, however, from the file is that Sh. ARCT No. 13/13 Page 10 of 19 Daljeet Singh filed an application on 04.05.2012 for deleting the name of late Sh. Daryodh Singh and to allow him, as being attorney, to pursue the legal proceedings, already pending or to be instituted before the Court of Law, in respect of the suit property after the death of Sh. Daryodh Singh on 13.03.2012. Sh. Daljeet Singh has stated himself to be the son of late Sh. Daryodh Singh. The copies of attorneys on the record shows that four attorney have been filed on record by Sh. Daljeet Singh duly executed by petitioner nos. 2 to 5.
20. It is evident from the bare perusal of Order XXII Rule 12 CPC that Rules 3,4 & 8 of Order XII of CPC are not applicable to the proceedings in execution of a decree or order. Hon'ble Supreme Court in the matters of Shri V. Uthirapathi vs. Ashrab Ali & Ors., while considering the limitation period in making the application for bringing legal heirs on record in execution proceedings, observed as under :
"If during the pendency of a regular execution proceeding filed on the basis of a decree or order of a civil court, the decree holder or the judgment debtor dies and his legal representatives are not brought on record within ninety days, can the civil courts dismissed the execution petition as abated?"ARCT No. 13/13 Page 11 of 19
Order XXII Rule 12 CPC, reads as follows:
"Order XXII Rule 12 : Application of order to proceedings. Nothing in Rule 3, 4 and 8 shall apply to proceedings in execution of a decree or order."
"In other words, the normal principle arising in a suit - before the decree is passed - the legal representatives are to be brought on record within a particular period and if not, the suit could abate, is not applicable to cases of death of the decree holder or the judgment debtor in execution proceedings".
21. Subsequently, in the matter of Hasham Abbas Sayyad vs.Usman Abbas Sayyad & Ors., 2007(2) SCC 355, the Hon'ble Supreme Court observed as under :
"A final decree proceeding may be initiated at any point of time. No limitation is provided, therefor. However, what can be executed is a final decree, and not a preliminary decree, unless and until final decree is a part of the preliminary decree".
22. The Hon'ble High Court of Chattisgarh at Bilaspur in the matter of Smt. Yashoda Devi vs. Neeta Devi, in Writ Petition C.No. 2488 of 2007, while relying upon the Judgments in the matters of Shri V. Uthirapathi (Supra) and Hasham Abbas Sayyad (Supra), vide Judgment dated 25.09.2008 was pleased to observe as follows:
ARCT No. 13/13 Page 12 of 19
"It is clear, therefore, that if after the filing of an execution petition in time, the decree holder dies and his legal representatives do not come on the record or the judgment debtor dies and his legal representatives are not brought on record, then there is no abatement of execution petition. If there is no abatement, the position in the eye of law is that the execution petition remains pending on the file of the execution court. If it remains pending and if no time limit is prescribed to bring the legal representatives on record, in execution proceedings, it is open in case of death of the decree holder, or his legal representatives to come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree holder's legal representatives. In case of death of the judgment debtor, the decree holder could file an application to bring the legal representatives of the judgment debtor on record, at any time. Of course, in case of death of judgment debtor, the Court can fix a reasonable time for the said purpose and if the decree holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event, the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree holder's legal representatives to file a fresh execution petition in case of death of a decree holder; or, in case of death of judgment debtor, the decree holder can file a fresh execution petition impleading the legal representatives of the judgment debtors; such a fresh ARCT No. 13/13 Page 13 of 19 execution petition, if filed, each, in law, only a continuation of a pending execution petition - the one which was filed in time by the decree holder initially. This is the position under the Code of Civil Procedure".
(Copy of the aforesaid Judgment is placed on the court file)
23. Hence, in view of the law laid down in the matter of V. Uthirapathi (Supra), the normal principle arising in a suit before the decree is passed, the LRs are to be brought on record within a particular period and if not, the suit can abate. However, this principle is not applicable to the cases of death of decree holder or the judgment debtor in execution proceedings. Hence, contention of the Ld. Counsel for the appellant that the execution petition stands abated, is not tenable in the law.
24. However, it is a fact that when the execution petition was filed, appellant nos. 2 to 5 were there as appellant nos. 2 to 5, though they had not signed the execution petition, but taking into consideration that the execution proceedings cannot abate in view of the law laid down as discussed herein above and the fact that if there is no abatement, the position in the eye of law is that the execution petition remains pending on the file of the ARCT No. 13/13 Page 14 of 19 execution court. If it remains pending and if no time limit is prescribed to bring the legal representatives on record, in execution proceedings, it is open in case of death of the decree holder, or his legal representatives to come on record at any time. The execution application cannot even be dismissed in default behind the back of the decree holder's legal representatives.
25. In any case, the execution petition cannot be dismissed as abated alternatively as held in the matter of Smt. Yashoda Devi (Supra). It is also open to the decree holder's legal representatives to file a fresh execution petition in case of death of a decree holder; or, in case of death of judgment debtor, the decree holder can file a fresh execution petition impleading the legal representatives of the judgment debtors; such a fresh execution petition, if filed, each, in law, only a continuation of a pending execution petition - the one which was filed in time by the decree holder initially. However, in the present case, the name of petitioner nos. 2 to 5 found mentioned in the execution petition though they have not signed the same, but they are also not debarred from pursuing the present execution petition. ARCT No. 13/13 Page 15 of 19
26. The appellant nos. 2(i), 2(ii) and 2(iii) have specifically given separate statement on oath on 16.01.2013 which clearly proves, in view of the copy of the power of attorneys on the record, that they have authorized Sh. Daljeet Singh to institute and prosecute the execution petition on their behalf. The said statements of Smt. Berinder Kaur, Sh. Kulmanbir Singh Hundal and Sh. Parvinder Singh Hundal recorded on 16.01.2013 clearly corroborate, approve, validate, confirm by express consent, approval or formal sanction, confirm (something done or arranged by an agent or by representative) by such action of Sh. Daljeet Singh and as such, give a formal consent to the impugned application, which is a subject matter, filed on 04.05.2012. The joint statement of above three persons clearly demonstrates that they were aware about the pending execution petition in which their interest was involved, which was being pursued by late Sh. Daryodh Singh on their behalf also.
27. Lets examine the impugned Order in the manner whether Sh. Daljeet Singh, legal heir, is entitled to prosecute the execution petition. In this execution petition, the execution was being sought by legal heir of one of the decree holders. The ARCT No. 13/13 Page 16 of 19 record reveals that the decision under execution is that of eviction. The Order was passed on 28.02.2004. It is passed in favour of Sh. Daryodh Singh and others. Sh. Daryodh Singh is one of the decree holders. The legal heir is Sh. Daljeet Sigh, who is the son of Sh. Daryodh Singh. The question is whether, as legal heirs, he is entitled to prosecute the execution petition. There is no doubt about the same. Let us see the position of Sh. Daljeet Singh in the light of Order XXI Rule 15 and Order XXI Rule 16 of CPC. The former applies in cases of joint decree holders and the procedure to be followed in case one of the decree holder applies for execution of decree. However, in this case, Sh. Daljeet Singh is not a decree holder, but a transferee of the decree holder as the decree holder passed away and he acquired rights in the decree by operation of law. Therefore, the provision applicable to him is Order XXI Rule 16 of CPC.
28. In the case of Bans Raj Singh & Ors. vs. Krishna Chandra & Ors., AIR 1981 All 280, it is held that the execution by one decree holder for execution of entire decree is possible. It held, "one of the decree holders can execute the decree for the benefit of all of them ever without impleading them and without ARCT No. 13/13 Page 17 of 19 mentioning this fact in the execution application that the decree is being executed for their benefit as an execution of the decree is permissible always for the benefit of all the decree holders unless it is proved otherwise. This is based on a very sound principle, otherwise any one of the decree holders or, account of some malice with the other decree holders or in collusion with the judgment debtors can make the decree unexecutable. As a joint decree is executable as such and the execution court cannot go behind the decree, a decree can be executed in part only where the share of the decree holders are defined or can be predicted or where the share is not in dispute. A joint decree, otherwise, is not divisible and can be executed and is always executable as joint decree".
29. The petitioner nos. 2 to 5 even after deletion of petitioner no. 1 late Sh. Daryodh Singh can continue with the same execution petition through attorney Sh. Daljeet Singh. Even otherwise, Sh. Daljeet Singh can also as a legal heir/transferee of the decree holder as the decree holder passed away and he acquired rights in the decree by operation of law and can continue the proceedings. I do not find any flaw in the ARCT No. 13/13 Page 18 of 19 impugned Order of Ld. Trial Court, to this extent.
30. Hence, I do not find any reason to interfere in the findings of Ld. Trial Court. I see no substance in this appeal as nothing could be pointed out from the contentions of the appellant.
31. In the result, I hold that this appeal is devoid of any merits and is accordingly dismissed. However, parties are left to bear their own costs. Record of the Trial Court be sent back alongwith an attested copy of the Judgment passed today. Appeal file be consigned to Record Room, after completing the necessary formalities.
Announced in the open Court
today i.e. 12.07.2013 (CHANDER SHEKHAR)
Distt. & Sessions Judge (North)
Rohini Courts, Delhi
ARCT No. 13/13 Page 19 of 19