Madhya Pradesh High Court
Mohd.Ayub Khan(D)Th.Lrs Mohd. Mustafa vs Ashif Ali on 24 April, 2012
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR.
F.A.No.913/2007
Mohd. Ayub Khan
(Since deceased, through L.Rs.)
-Versus-
Ashif Ali and others.
PRESENT : Hon'ble Shri Justice K.K. Trivedi.
Shri A.K. Jain, learned counsel for appellants..
Shri Niranjan Pathak, learned counsel for the
respondent No.1.
JUDGMENT
(24.4.2012) 1: This First Appeal under Section 96 of the Code of Civil Procedure is directed against the judgment and decree dated 27.11.2007, passed in Civil Suit No.11-A/1998, by the First Additional District Judge, Waraseoni, District Balaghat, dismissing the suit of the appellants/ plaintiffs.
2: Brief facts giving rise to filing of this appeal are that one Mst. Noorjahan Begum, daughter of Inayatulla Khan, was the owner in possession of 24.934 hectare land of Village Nilaji, Patwari Circle No.16, Revenue Inspector Circle Lalbarra, Tahsil Waraseoni, District Balaghat, said Mst. Noorjahan Begum died issueless on 25.7.1993. Said Mst. Noorjahan Begum had instituted a Civil Suit in the Court of IV Civil Judge, Class-II, Balaghat, bearing Civil Suit No.20-A/1991, in which the family genealogy was given according to which the 2 appellants herein were the legal representatives of father and brother of said Mst. Noorjahan Begum. During pendency of the said suit, Mst. Noorjahan Begum died and nobody appeared in the said suit, therefore, the same was dismissed. After the death of said Mst. Noorjahan Begum, the names of appellants were recorded in the land in suit. However, all of a sudden, the original defendant No.2 and respondents No. 3 and 4 tried to take forcible possession of the land, therefore, suit was required to be filed by the appellants in the Court of I Additional Civil Judge Class-II, Waraseoni, bearing C.S.No.5-A/94. A written statement was filed in the said suit by the original defendant Yushuf Khan and respondents No. 3 and 4 herein that the land in the said suit was bequeathed to the respondents No. 3 and 4 and to the original defendant Yushuf Khan vide a Will dated 15.2.1992 by Mst. Noorjahan Begum. It was alleged that the said Will was got registered after the death of Mst. Noorjahan Begum on 13.8.1993. By the said Will not only the land in said suit, but other lands were also bequeathed to the said respondents. In the said Civil Suit, a compromise was entered into on 8.8.1994 wherein the respondents No. 3 and 4 have admitted the claims of the appellants over the land in dispute. However, the said compromise application remained pending and since the suit was transferred from one Court to another and after the transfer, the case number was changed to Civil Suit No.155-A/1998, ultimately, a final decree on the strength of compromise was passed on 15.2.1999. The respondents No. 3 and 4 were fully aware of the fact that they have relinquished their right if at all on the land in dispute and, therefore, were not entitled to ownership over the said land.
3: In between this, the respondent No.1 herein filed some suit against the deceased Yusuf Khan and the respondents No. 3 and 4 for specific performance of the agreement to sell agricultural land saying that there was an agreement executed by Mst. Noorjahan Begum with respect to sale of said land and since by virtue of the Will executed by said Mst. Noorjahan Begum, the original defendants No. 2,3 and 4 were the legal representatives of said Mst.
3Noorjahan Begum and since after the death of said Mst. Noorjahan Begum, they were liable to execute the sale deed in fulfilment of the agreement of sale, such a decree be granted in favour of the respondent No.1. Though a written statement was filed by the respondents No. 2,3 and 4 in the said suit filed by the respondent No.1 for specific performance, but they proceeded ex-parte and the suit was decreed in favour of the respondent No.1. When the appellants came to know about the execution of the said ex-parte judgment and decree, they obtained the information and since such a decree has been obtained in collusion with original defendants No. 2,3 and 4, such a decree is bad in law. The suit was required to be filed for the said purpose.
4: The reliefs claimed in the suit were that the judgment and decree passed in Civil Suit No.81-A/1996 dated 20.1.1997 was not binding on the appellants and the respondents were liable to be injuncted permanently by grant of a decree of permanent injunction to get the said decree executed and take the possession of the disputed land from the appellants/plaintiffs.
5: The said suit was contested by the respondent No.1 and it has been contended that agreement was executed by Mst. Noorjahan Begum and she herself had disclosed at that time that the Will dated 15.2.1992 has been executed in favour of respondents No. 2,3 and 4 and in case she dies, the sale deed in compliance of agreement will be executed by the aforesaid three persons. After the death of Mst. Noorjahan Begum, for the purposes of execution of the agreement, the suit for specific performance was required to be filed and, therefore, only such persons who were the legal heirs of said Mst. Noorjahan Begum were required to be impleaded. There was no question of any collusion in between the plaintiffs and defendants in the said suit. The suit for specific performance was decreed much before the decree granted in the compromise application in the previous suit filed by the appellants. Therefore, the decree as granted in Civil Suit filed by the respondent No.1 on 20.1.1997 was just and proper and was, thus, to be executed.
46: The trial Court framed the issues, recorded the evidence and came to the conclusion that such a claim made by the appellants was not tenable in a fresh suit, as such an objection could have been raised by the appellants under the provisions of Order 21 Rule 97 read with Rules 101 & 103 of the Code of Civil Procedure. Thus, holding that such a suit was not maintainable and no allegation of fraud is made out, the suit was dismissed. Hence, this appeal.
7: Learned counsel appearing for appellants has, vehemently, contended that a plain and simple reading of Order 21 Rule 97 and 101 of the Code of Civil Procedure will make it clear that a fresh suit filed on the basis of such allegations is not completely barred. It is contended that if properly it is appreciated, it would be that the appellants are the third party, not a party in the suit in which the decree was granted and was sought to be executed, therefore, there was no question of holding that the suit as filed by the appellants was not maintainable and the same was liable to be rejected. It is contended that the law is well settled that only an objector can file an objection under Order 21 Rule 97 of C.P.C., and no third party can make a claim under Order 21 Rule 97 of C.P.C., in a pending execution of a decree with respect to his title or interest in the disputed property. A third party is required to file a suit claiming his rights. It is also putforth that the fraud was committed by the respondents No. 2,3 and 4 and on account of that fraudulent act, a decree of specific performance was obtained by the respondent No.1 and, therefore, to challenge such a decree, the appellants being third party, were required to file a suit. It is contended that the law is again well settled that a fraudulent decree can be challenged by way of filing of a suit and not otherwise.
8: Per contra, it is contended by learned counsel for respondents that there was no question of fraud. The compromise decree was granted in favour of appellants in the case which was initiated by appellants prior to filing of the suit for specific performance by the 5 respondent No.1. Since the decree of compromise itself was granted subsequent to the decree granted in the suit filed by respondent No.1, how could it be alleged that there was fraudulent decree obtained by the respondent No.1. If the appellants claim themselves to be in title or in possession of the suit property, they will step in the shoes of an objector because they will obstruct the execution of the said decree and in that case, they were required to file an objection under Order 21 Rule 97, 101 and 103 of C.P.C. No separate suit is maintainable in that respect as is well settled in law. 9: Heard learned counsel for the parties at length and perused the record.
10: The first and foremost question which is to be decided by this Court is whether such a suit filed by the appellants was maintainable in view of Order 21 Rule 97 & 101 of C.P.C ? A plain and simple reading will make it clear that if anybody is objecting to the execution of a decree, he become an objector and then he has only remedy to file an application/objection under Order 21 Rule 97, 101 and 103 of C.P.C., and no separate suit would be maintainable in that respect. The Madras High Court has considered these aspect in light of the decision rendered by the Apex Court in some of the cases and has come to the conclusion that the provisions of Order 21 Rule 97 and 101 of C.P.C., creates an embargo that no separate suit would lie in respect of the objections/claim made with respect to the property in respect of which a judgment and decree has been passed. However, an objection in that respect can be raised in the execution proceedings itself under the aforesaid provisions. This particular aspect is not to be adjudicated once again as it is not res integra. That being so, now it is to be seen whether the appellants could be considered as objector or not so that they may be eligible to file an application/objection under Order 21 Rule 97 and 101 C.P.C.. The plaint indicates that the appellants have stated in none else but definite words that they are the owner of the disputed land by virtue of a compromise on the basis of which a decree has been passed in their favour. The suit for specific performance itself was filed by respondent No.1 on 21.3.1995. On that day, the decree of compromise was not passed. Of course, the compromise was 6 entered into before filing of the suit by the appellants, with respondents No. 2,3 and 4, but whether such a fact was disclosed by those defendants to the respondent No.1 or not , are not clear. If the suit was going on and any right was relinquished unless such a relinquishment is either admitted, registered or acknowledged by the Court, it was not to be acted upon. The respondent No.1 has categorically contended that the original owner of the land while executing the agreement has disclosed about making of a Will in favour of respondents No. 2,3 and 4. If that was the situation, whether the Will was to be acted upon or not whether by virtue of that Will, the respondents No. 2,3 and 4 were bound to execute the sale deed in favour of respondent No.1 or not, nothing has been proved in that respect. The ingredients of fraud as are required to be proved, were not proved. In absence of such findings, how could it be said that there was a fraudulent decree which was required to be challenged only by a suit and not otherwise. On the other hand, the appellants were in possession of the land which was required to be sold in execution of the decree granted in favour of the respondent No.1. If they were of the opinion that their rights are going to be affected over the said land, they were nothing, but the objectors of the execution of the said judgment and decree and, therefore, were liable to file an objection under Order 21 Rule 97 and 101 of C.P.C. It was not necessary for them to file a suit independently.
11 : In the case of Pt. Ramgulam Choubey and another Vs. Mahendra Kumar and another [ILR 1977 MP 693], this Court has considered the scope of objection, has further dealt with whether a third party can make an objection or not and when a third party became an objector. It has been categorically held that if somebody is claiming right, title or interest over the property in respect of which a decree has been passed, he has a right to file an objection under Order 21 Rule 97 of C.P.C. This law has been further considered by the Full Bench of this Court in the case of Smt. Usha Jain and others Vs. Manmohan Bajaj and others [ILR 1982 MP 837] and the Full Bench of this Court has also 7 clarified the scope of objection to be raised by an objector under the provisions of Order 21 Rule 97 of C.P.C. As has been stated hereinabove, such law has already been considered in various cases by the different High Courts and in all such laws, it has been held that if an objection can be made under Order 21 Rule 97 and 101 of C.P.C., there is no right available to file a fresh suit with respect to the very same claim. This being so, the findings recorded by the Courts below in this respect cannot be said to be perverse.
12 : In the considered opinion of this Court, the findings as recorded by the Courts below are just and proper and need no interference in this appeal by this Court. The appeal being bereft of any merit deserves to be and is, hereby, dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
(K.K.Trivedi) Judge /04/2012 8 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR F.A.No.913/2007 Mohd. Ayub Khan (Since deceased, through L.Rs.)
-Versus-
Ashif Ali and others.
J U D G M E N T
( .4.2012)
Post it for /4/2012
(K. K.Trivedi)
Judge
/04/2012
9