Punjab-Haryana High Court
Dinesh Kumar vs Baldev Raj And Anr on 25 August, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
vinod kumar
2014.09.02 12:07
I attest to the accuracy and
integrity of this document
Chandigarh
CR No.5832 of 2011 (O&M) [1]
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.5832 of 2011 (O&M)
Date of decision:25.08.2014
Dinesh Kumar ...Petitioner
Versus
Baldev Raj and another ...Respondents
CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. S.S.Dinarpur, Advocate,
for the petitioner.
Mr. Ashwani Kumar Chopra, Senior Advocate, with
Mr. Gursher Singh, Advocate, for respondent no.1.
Mr. Ravindra Jain, Advocate,
for respondent no.2.
*****
RAKESH KUMAR JAIN, J. (Oral)
This petition is filed against the order dated 06.09.2011 by which appeal filed by the petitioner, against the order of the Executing Court dismissing his objection, has been dismissed as not maintainable.
The brief facts of the case, as narrated before me, are that respondent no.1 filed a suit for specific performance of an agreement to sell dated 21.10.1999 entered into by him with respondent no.2. The petitioner had purchased the suit property by way of sale deed dated 28.03.2002. Ultimately, the suit was decreed on 21.11.2003 as per which respondent no.1 was directed to deposit a sum of `10,000/- towards balance sale consideration within 3 months. The said amount was deposited by vinod kumar 2014.09.02 12:07 I attest to the accuracy and integrity of this document Chandigarh CR No.5832 of 2011 (O&M) [2] ***** respondent no.1 which was even withdrawn by respondent no.2 on 23.02.2004. However, he did not execute the sale deed and rather filed objections on 22.02.2004 to which reply was filed on 08.05.2004 but the said objections were dismissed on 14.06.2005. The Executing Court even ordered for delivery of possession to respondent no.1 through police help.
The petitioner also filed a suit for permanent injunction against both respondents no.1 and 2 on 13.05.2005 and also filed his objections in the Execution Application on 11.06.2005. However, the said suit was withdrawn by him on 09.10.2009. When respondent no.2 failed to execute the sale deed in favour of respondent no.1 in terms of the decree dated 21.11.2003, the Court got it executed and registered on 31.03.2004 and respondent no.1 not only challenged the decree dated 21.11.2003 based on the compromise but also the sale deed dated 31.03.2004 in favour of respondent no.1. However, the said suit was dismissed on 19.09.2007. The objections filed by the petitioner in the execution petition were dismissed on 18.10.2007 by the Executing Court by framing issues, against which the petitioner filed an appeal which was allowed on 12.01.2008. This led to the filing of CR No.1849 of 2008 at the instance of respondent no.1 which was dismissed on 19.08.2009 and the case was remanded back to the Executing Court and allowed the parties to lead evidence in regard to their objection. As a result of the aforesaid order dated 19.08.2009, the Executing Court framed issues on the basis of the pleadings of the parties and after the evidence was led, dismissed the objection vide his order dated 17.08.2011. Against the said order dated 17.08.2011, the appeal was filed which has vinod kumar 2014.09.02 12:07 I attest to the accuracy and integrity of this document Chandigarh CR No.5832 of 2011 (O&M) [3] ***** been dismissed by the Appellate Court on the ground that it is not maintainable, which led to the filing of the present revision petition.
It may be noticed here that at the time when the revision petition was filed, it was allowed by this Court ex-parte without issuing notice to the opposite party vide its order dated 23.09.2011, relying upon Order 21 Rules 97, 98, 100 and 103 of the CPC. Since the order passed by this Court also gave liberty to the other side for filing an application in case they were aggrieved, the application bearing CM No.7046-CII of 2012 was filed by respondent no.1 which has been allowed by this Court vide order dated 05.08.2014 and the case was fixed for hearing on merits.
Shri Dinarpur, learned counsel appearing on behalf of the petitioner, has submitted that the learned Court below has committed a patent error of law in dismissing the appeal being not maintainable as it has not taken into consideration various provisions of the Code of Civil Procedure, 1908 (here-in-after referred to as the "CPC"). It is submitted that he was not a party to the suit as he had purchased the suit property during the pendency of the suit and had filed objection under Order 21 Rule 97 of the CPC. It is submitted that once the objection has been filed under Order 21 Rule 97 of the CPC, it has to be adjudicated in terms of Order 21 Rule 98 of the CPC which further provides for adjudication of all the questions determined under Order 21 Rule 101 of the CPC and once the Executing Court has decided under Order 21 Rule 98 of the CPC the question determined under Order 21 Rule 101 of the CPC, it has to be treated as a decree and as per Order 21 Rule 103 of the CPC, the appeal is vinod kumar 2014.09.02 12:07 I attest to the accuracy and integrity of this document Chandigarh CR No.5832 of 2011 (O&M) [4] ***** maintainable. In support of his submission, he has relied upon two judgment of the Supreme Court in the cases of N.S.S. Narayana Sarma v. M/s. Goldstone Exports P. Ltd., 2002(1) R.C.R. (Civil) 752, Shreenath v. Rajesh, 1998(1) R.C.R. (Rent) 454 and a judgment of this Court in the case of Bhagwan Bai v. Chiranji Lal and another, 2009(5) R.C.R. (Civil) 787. He has also submitted that the decree passed in the suit on 21.11.2003 is a collusive decree, therefore, Section 52 of the Transfer of Property Act, 1882 is not applicable.
Shri Ashwani Kumar Chopra, learned senior counsel appearing on behalf of respondent no.1, has submitted that the case is not governed by Order 21 Rule 103 of the CPC, rather it is covered by Order 21 Rule 102 of the CPC. It is submitted that since it is not disputed that the petitioner is a transferee pendente lite, therefore, his case would not fall within the purview of Order 21 Rules 97, 98 or 101 of the CPC, rather it would fall under Order 21 Rule 102 of the CPC. In support of his submission, he has relied upon a judgment of the Supreme Court in the case of Usha Sinha v. Dina Ram and others, 2008(3) RCR (Civil) 145. He has also submitted that the contention of the learned counsel for the petitioner is totally incorrect that respondents no.1 and 2 had played a friendly match in which respondent no.2 had suffered a collusive decree. However, he has fairly conceded that had there been a collusive decree suffered by respondent no.2 in favour of respondent no.1, then perhaps Order 21 Rule 101 of the CPC would have been applicable as the collusive decree is excluded in Section 52 of the Transfer of Property Act, 1882.
vinod kumar2014.09.02 12:07 I attest to the accuracy and integrity of this document Chandigarh CR No.5832 of 2011 (O&M) [5]
***** I have heard learned counsel for the parties and examined the record with their able assistance.
In order to appreciate the arguments raised by learned counsel for the parties, it would be relevant to peruse Order 21 Rules 97 to 103 of the CPC and Section 52 of the Transfer of Property Act, 1882, which read as under:-
Order 21 Rules 97 to 103 of the CPC "97. Resistance or obstruction to possession of immovable property.- (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
98. Orders after adjudication. --(1) Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),-
(a) make an order allowing the application and vinod kumar 2014.09.02 12:07 I attest to the accuracy and integrity of this document Chandigarh CR No.5832 of 2011 (O&M) [6] ***** directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment- debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.
99. Dispossession by decree-holder or purchaser. -- (1) where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the vinod kumar 2014.09.02 12:07 I attest to the accuracy and integrity of this document Chandigarh CR No.5832 of 2011 (O&M) [7] ***** Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
100. Order to be passed upon application complaining of dispossession.-- Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination,--
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
101. Question to be determined.- All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide vinod kumar 2014.09.02 12:07 I attest to the accuracy and integrity of this document Chandigarh CR No.5832 of 2011 (O&M) [8] ***** such questions.
102. Rules not applicable to transferee pendente lite.-- Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.
Explanation.-- In this rule, "transfer" includes a transfer by operation of law.
103. Orders to be treated as decrees.-- Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree."
Section 52 of the Transfer of Property Act, 1882
52. Transfer of property pending suit relating thereto. --During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in vinod kumar 2014.09.02 12:07 I attest to the accuracy and integrity of this document Chandigarh CR No.5832 of 2011 (O&M) [9] ***** question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation.-- For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."
There is no dispute that the petitioner was not a party to the suit, decreed on 21.11.2003, but it is also an admitted fact that the petitioner had purchased the property in dispute on 28.03.2002, after filing of the suit on 21.10.1999. Thus, the petitioner is a transferee pendente lite and has no other status. The question thus involved in this revision petition is that in case the objection filed by a transferee pendente lite is dismissed, an appeal would be maintainable or a Civil Revision.
vinod kumar2014.09.02 12:07 I attest to the accuracy and integrity of this document Chandigarh
CR No.5832 of 2011 (O&M) [ 10 ]
*****
Insofar as the decision relied upon by learned counsel for the petitioner in N.S.S. Narayana Sarma's case (supra) is concerned, there was an obstruction in delivery of possession by a third person claiming title to the property and the question involved was as to whether the application under Order 21 Rule 97 of the CPC would be maintainable. It was decided by the Supreme Court that all questions in application shall be determined by the Executing Court which will pass appropriate order and such order is to be treated as a decree. On the strength of this judgment, learned counsel for the petitioner has argued that once there is a decree, it is always amenable to appeal.
In Shreenath's case (supra), it was held that even if third person is in possession of property and claiming independent right, may be as a tenant, and the said person is not a party to the suit for possession, he can always resist the decree by seeking adjudication of his objections under Order 21 Rule 97 CPC and the Executing Court has to adjudicate the objections and cannot ask for filing a separate suit in that regard.
To my mind, both the judgments are not applicable insofar as the controversy in hand is concerned. However, the judgment in Bhagwan Bai's case had some relevance because in that case, this Court has held that Rule of lis pendens would not apply. It was held that in case there is a collusion between the parties, then there would be an exception as provided in Section 52 of the Transfer of Property Act, 1882 to Rule 102 of Order 21 of the CPC, but the facts remains as to whether there has been a collusion between the parties or not.
vinod kumar2014.09.02 12:07 I attest to the accuracy and integrity of this document Chandigarh
CR No.5832 of 2011 (O&M) [ 11 ]
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I would advert to this question lateron and at this stage I would decide as to whether Order 21 Rule 102 would apply or not.
In Usha Sinha's case (supra), the Supreme Court has held that "bare reading of the rule makes it clear that it is based on justice, equity and good conscience. A transferee from a judgment debtor is presumed to be aware of the proceedings before a Court of law. He should be careful before he purchases the property which is the subject matter of litigation. It recognizes the doctrine of lis pendens recognized by Section 52 of the Transfer of Property Act, 1882?. Rule 102 of Order XXI of the Code thus takes into account the ground reality and refuses to extend helping hand to purchasers of property in respect of which litigation is pending. If unfair, inequitable or undeserved protection is afforded to a transferee pendente lite, a decree holder will never be able to realize the fruits of his decree. Every time the decree holder seeks a direction from a Court to execute the decree, the judgment debtor or his transferee will transfer the property and the new transferee will offer resistance or cause obstruction. To avoid such a situation, the rule has been enacted." It has been further held that:-
"18. It is thus settled law that a purchaser of suit property during the pendency of litigation has no right to resist or obstruct execution of decree passed by a competent Court. The doctrine of 'lis pendens' prohibits a party from dealing with the property which is the subject matter of suit. 'Lis pendens' itself is treated as constructive notice to a purchaser that he is bound by a vinod kumar 2014.09.02 12:07 I attest to the accuracy and integrity of this document Chandigarh CR No.5832 of 2011 (O&M) [ 12 ] ***** decree to be entered in the pending suit. Rule 102, therefore, clarifies that there should not be resistance or obstruction by a transferee pendente lite. It declares that if the resistance is caused or obstruction is offered by a transferee pendente lite of the judgment debtor, he cannot seek benefit of Rule 98 or 100 of Order XXI."
"21. We are in respectful agreement with the proposition of law laid down by this Court in Silverline Forum. In our opinion, the doctrine is based on the principle that the person purchasing property from the judgment debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree. Resistance at the instance of transferee of a judgment debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated.
22. For invoking Rule 102, it is enough for the decree holder to show that the person resisting the possession or offering obstruction is claiming his title to the property after the institution of the suit in which decree was passed and sought to be executed against the judgment debtor. If the said condition is fulfilled, the case falls within the mischief of Rule 102 and such applicant vinod kumar 2014.09.02 12:07 I attest to the accuracy and integrity of this document Chandigarh CR No.5832 of 2011 (O&M) [ 13 ] ***** cannot place reliance either on Rule 98 or Rule 100 of Order XXI."
I am in agreement with the argument raised by learned counsel for respondent no.1 because the petitioner is a transferee pendente lite and Order 21 Rule 102 of the CPC provides that in such a case Order 21 Rules 98 or 100 of the CPC would not be applicable. If that is so, there would not be an adjudication on merits of the objection.
Learned counsel for the petitioner has submitted that the question whether Order 21 Rule 98 or Order 21 Rule 101 would apply has already been determined by this Court in CR No.1849 of 2008 when respondent no.1 had filed the revision against the order by which appeal of the petitioner was allowed. He has referred to the observation made by this Court and submitted that the question would be as to whether the principle of lis pendens would be applicable or not?
In answer to this argument, learned counsel for respondent no.1 has referred to the decision of the Trial Court where the issue of lis pendens has been thoroughly dealt with. Instead of making separate observation on this issue, it would be appropriate to look into the following observations made by the Trial Court in this regard:-
"There is no evidence on record which could reflect that the decree holder and judgment debtor were colluded with each other, rather it was judgment debtor and objector, who were colluded with each other to cause wrongful loss to the decree holder. Had decree holder vinod kumar 2014.09.02 12:07 I attest to the accuracy and integrity of this document Chandigarh CR No.5832 of 2011 (O&M) [ 14 ] ***** and judgment debtor colluded with each other, the objector would have filed criminal complaint against them or reported the matter to the police, but nothing of the sort was done by him. Further, it was decree holder, who had grievance against Judgment debtor and, therefore, he had filed a criminal complaint against judgment debtor Nathi Ram, copy of complaint Ex.PA has been placed on record. In the said complaint case, judgment debtor had been ordered to be summoned to face trial under Sections 420, 193, 499 and 500 of the Indian Penal Code, vide order dated 11.02.2010 Ex.PB by the then learned Additional Chief Judicial Magistrate, Yamuna Nagar at Jagadhri. It has also come on record that Nathi Ram had filed a civil suit titled as Nathi Ram versus Baldev Raj, for declaration challenging the decree dated 21.11.2003 and compromise Ex.CX in respect of the suit property on 22.02.2005, but the same was dismissed in default vide order dated 19.09.2007, by the then learned Civil Judge (Junior Division), Yamuna Nagar at Jagadhri. This fact also shows that there was some dispute between the decree holder and judgment debtor, due to which civil suit for declaration was filed by judgment debtor Nathi Ram against decree holder Baldev Raj. If judgment debtor had already sold the plot vinod kumar 2014.09.02 12:07 I attest to the accuracy and integrity of this document Chandigarh CR No.5832 of 2011 (O&M) [ 15 ] ***** in question to the objector vide registered sale deed on 28.03.2002, he must have obtained the sale price of the property in question by 28.03.2002. meaning thereby the aim of judgment debtor to obtain money by committing fraud and mis-representation from objector was fulfilled on 28.03.2002. If that being so, there was no necessity for him to file the civil suit for declaration to challenge the decree in question and compromise Ex.CX subsequently on 22.02.2005. Another fact which needs to be highlighted here is that the judgment debtor had earlier filed the objection himself, which were dismissed by the Executing Court on 14.06.2005. The Judgment debtor himself tried his best to get rid of decree holder and when he failed in his illegal designs, he got the present objections filed through the objector. Cumulative effect of the above discussion is that there was no collusion between the decree holder and judgment debtor and if any collusion was there that was between the judgment debtor and objector as judgment debtor any how wanted to cheat and defraud the decree holder. Further, if it is taken to be true that fraud was played upon the objector, then also it was judgment debtor, who had committed fraud if any upon the objector and decree holder was not in any manner vinod kumar 2014.09.02 12:07 I attest to the accuracy and integrity of this document Chandigarh CR No.5832 of 2011 (O&M) [ 16 ] ***** colluded with the judgment debtor. In case judgment debtor had really sold the property in question to the objector in that eventuality, he would have impleaded the objector as a party in the civil suit filed by Baldev Singh. Thus, fault if any is on the part of judgment debtor and not decree holder. In this view of the matter, objector may avail appropriate remedy against the judgment debtor, if so advised."
Accordingly, from the facts and circumstances noticed by the learned Court below, it cannot be said that there was a collusion between respondents no.1 and 2 as respondent no.2 had been continuously and persistently trying that the decree obtained by respondent no.1 may not be executed. It can be easily gathered from the record that even after withdrawing `10,000/- on 23.02.2004, respondent no.2 did not execute and register the sale deed in favour of respondent no.1 and rather filed frivolous objection on 22.02.2004 which was dismissed on 14.06.2005. Thereafter he filed the Civil Suit and even then the sale deed was got registered on the interference of the Court. He had the sagacity to file the suit for declaration challenging not only the judgment and decree dated 21.11.2003 but also the sale deed executed and registered in favour of respondent no.1. Not only this, there was also a criminal litigation between the parties which has been noticed by the learned Executing Court.
In these facts and circumstances, it cannot be held that there was a collusion between respondents no.1 and 2 even if the suit for specific vinod kumar 2014.09.02 12:07 I attest to the accuracy and integrity of this document Chandigarh CR No.5832 of 2011 (O&M) [ 17 ] ***** performance was decreed on the basis of the compromise. Once I am holding that there was no collusion between respondents no.1 and 2, Order 21 Rule 103 of the CPC would not apply and the ultimate result is that Order 21 Rule 102 of the CPC would be applicable to the present facts and circumstances as the petitioner is only a transferee pendente lite and Order 21 Rules 98, 101 and 103 are to be excluded on which the petitioner has been squarely banking upon.
In view of the aforesaid discussion, I do not find any merit in the present revision petition and hence, the same is hereby dismissed.
August 25, 2014 (RAKESH KUMAR JAIN) vinod* JUDGE