Rajasthan High Court - Jodhpur
Tara Chand & Ors vs Mahendra Kumar & Anr on 22 February, 2013
Author: P.K. Lohra
Bench: P.K. Lohra
[1]
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
Tara Chand & Ors. V/s. Mahendra Kumar & Anr.
S.B. CIVIL EXECUTION FIRST APPEAL NO.2/2013
Under Section 96 CPC read with Order
21 Rule 103 CPC against the order
dated 14.01.2013 passed by Additional
District Judge No.2, Udaipur in Case
No.30/2012 (Tara Chand & Ors. Vs.
Mahendra Kumar & Anr.)
***
Date of Order :: February 22, 2013
PRESENT
HON'BLE MR. JUSTICE P.K. LOHRA
Reportable
Mr. Usman Ghani, for the appellants.
Mr. Khet Singh, for the respondent No.1.
BY THE COURT:
Disdained by the impugned order dated 14th of January 2013 passed by the Addl. District Judge No.2, Udaipur in Case No.30/2012, the appellants have laid this Execution First Appeal under Order 21 Rule 103 Code of Civil Procedure 1908 (for short, 'the CPC').
Succinctly stated, the facts of the case are that the first respondent decree-holder filed a suit for specific [2] performance of contract against Late Shri Onkar Shanker Paneri on the strength of an agreement to sale dated 27th of April 1994 for House No. 24 Solankiyo ki Ghati, Bhatiyani Chohata, Udaipur. As per recital in the agreement to sale, Late Shri Onkar Shanker agreed to sale the said house to the respondent decree-holder for a sum of Rs.1,90,000/- only. The suit was contested by Late Shri Onkar Shanker and finally the suit was decreed vide judgment and decree dated 11th August 2000 by the Addl. District Judge No.2, Udaipur. Being aggrieved from the judgment and decree passed by the learned trial Court, Mr. Onkar Shanker, grand- father of appellant No.1 to 3 and father-in-law of the 4th appellant, preferred a civil regular first appeal before this Court and same was registered as S.B. Civil First Appeal No.170 of 2000. The said first appeal was ultimately dismissed by this Court vide its judgment dated 10th October 2003. After dismissal of the first appeal, the first respondent decree-holder launched execution proceedings and Execution Case No.21 of 2003 was registered. During the pendency of the execution proceedings, the appellant submitted their objections under Order 21 Rule 97-2001 CPC resisting the execution of the decree. Opposing the objections of the appellants, the first respondent decree- [3] holder submitted an application under Order 7 Rule 11 read with Section 151 CPC. The learned court below heard arguments on the application submitted by the respondent decree-holder as well as the objections filed on behalf of the appellants simultaneously and vide impugned order rejected the objections submitted on behalf of the appellants. Although the application submitted on behalf of first respondent decree-holder was captioned as an application under Order 7 Rule 11 read with Section 151 CPC but the learned executing court while construing the same as an application under Section 151 CPC, allowed it for non- suiting the objections submitted on behalf of the appellants.
The learned counsel appearing for the appellants Mr. Usman Ghani made sincere endeavour to invite my attention towards the provisions of Order 21 Rule 97 CPC and submitted that the appellants are well within their rights to resist the execution of the decree for possession of disputed immovable property. The provisions contained in Rule 97 of Order 21 CPC are reproduced as infra:
"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 [4] 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.
Buttressing his submissions on the strength of aforementioned Rule 97 of Order 21 CPC, learned counsel Mr. Usman Ghani has contended that being legal representatives of the original judgment-debtor Mr. Onkar Shanker, the appellants are well within their rights to resist the execution of the decree and to obstruct the first respondent decree-holder from obtaining possession of the disputed property.
In alternative, the learned counsel Mr. Usman Ghani has urged that the original judgment-debtor Mr. Onkar Shanker was not the sole owner of the property as the property in dispute was ancestral. Emphasizing the nature of the property as Joint Hindu Family property, Mr. Usman Ghani has argued that being shareholders in the said property, all the appellants are having independent rights in the said property as shareholders. Precisely, this alternative submission of Mr. Usman Ghani is to wriggle out [5] from the embargo contained in Rule 102 of order 21 CPC, For ready reference, Rule 102 of Order 21 CPC is reproduced as infra:
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.
While substantiating his alternative argument, the learned counsel for the appellant has vehemently argued that the property in dispute is a Joint Hindu Family property and as such the appellants cannot be non-suited in their mission for objection on the strength of legal embargo as envisaged under Rule 102 of Order 21 CPC. In support of his contention, the learned counsel for the appellants has invited my attention towards an authoritative pronouncement of Hon'ble Apex Court in case of Noordudin Vs. Dr. K.L. Anand [1995 (1) SCC 242]. Relying on the said decision, the learned counsel for the appellants has invited my attention towards Para 8 to 10 of the judgment with a view to elucidate the scheme of the Code for dealing with the objections under Order 21 Rule 97 CPC. Para 8 to 10 of the Nooruddin's case are reproduced hereinbelow:
[6]
8. Thus, the scheme of the Code clearly adumbrates that when an application has been made under Order 21, Rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree-holder and the person claiming independent right, title or Interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21, Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution.
9. Adjudication before execution is an efficacious remedy to prevent fraud, oppression, abuse of the process of the court or miscarriage of justice.
The object of law is to mete out justice. Right to the right, title or interest of a party in the immovable property is a substantive right. But the right to an adjudication of the dispute in that behalf is a procedural right to which no one has a vested right. The faith of the people in the efficacy of law is the saviour and succour for the sustenance of the rule of law. Any weakening like in the judicial process would rip apart the edifice of justice and create a feeling of disillusionment in the minds of the people of the very law and courts. The rules of procedure have been devised as a channel or a means to render substantive or at best substantial justice which is the highest interest of man and almameter (sic) for the mankind. It is a foundation for orderly human relations. Equally the judicial process should [7] never become an instrument of oppression or abuse or a means in the process of the court to subvert justice. The court has, therefore, to wisely evolve its process to aid expeditious adjudication and would preserve the possession of the property in the interregnum based on factual situation. Adjudication under Order 21, Rules 98, 100 and 101 and its successive rules is sine qua non to a finality of the adjudication of the right, title or interest in the immovable property under execution.
10. The question is whether the executing court was right in dismissing the application on the ground that the dispute was adjudicated in RFA No. 305 of 1986 or as held by the High Court that the dispute was decided in the writ proceedings referred to earlier. The execution court is enjoined to adjudicate the claim or the objection or the claim to resistance. As seen, Rule 97 enables such a person to make an application which must be independent of the judgment-debtor or a person having derivate right from the judgment-debtor. The applicant in his own right must be in possession of the property. Admittedly, neither the appellant nor his father was a party to the suit or appeal. Therefore, the decree per force does not bind him. In the writ proceedings, though Nanu was impleaded as 5th respondent, no relief was claimed against him nor a finding adverse to him has been recorded. Thereby, there is no adverse finding recorded either in the suit or in the writ proceedings against the appellant or his father. Under these circumstances, when the appellant has been claiming right, title and interest in Khasra No. 179 from which he is now sought to be dispossessed in execution of the decree by the respondent in respect of Khasra Sakni Nos. 13 and 14, the executing court necessarily has to go into the question whether the property in Khasra No. 179 is part of Khasra Sakni Nos. 13 and 14 and if so, whether the respondent while executing the decree trenched upon his property and sought to dispossess him. The appellant's possession, pending adjudication, needs to be protected by interim orders. Unfortunately, the courts below had not adverted to these crucial [8] aspects of the matter. When the appellant claimed independent right, title and interest and resisted the execution, the decree-holder or the appellant should make an application under Rule 97(1) and the court, in that event, is enjoined to adjudicate the claim and record a finding, allowing or rejecting the claim. It should be remembered that Parliament intended to shorten the litigation and to give effect to it, a simplified procedure was devised for adjudication. On the basis of the fact situation and the nature of the controversy, the claim has to be adjudicated expeditiously in a period not exceeding six months and preferably on day to day basis by putting an end to the tendentious conduct of prolonging the proceedings by suitable orders. Thus, in totality, the submission of the learned counsel for the appellants is that the appellants are the shareholders in the Joint Hindu Family property and as such it was expected from the learned Executing Court to entertain their objections and to adjudicate them on merit in accordance with law. Learned counsel Mr. Usman Ghani has argued that the learned court below has not examined the objections in right perspective and by the impugned order has rejected these objections in a slip shod manner contrary to the basic tenets of law, and therefore, the order impugned is not sustainable.
Per contra, Mr. Khet Singh, learned counsel appearing for first respondent decree-holder, has repelled both the contentions of the learned counsel for the [9] appellants with full emphasis at his command and stoutly defended the impugned order passed by the executing court. Learned counsel for the respondent has urged that the judgment and decree passed by the learned trial Court on 11th August 2000 has been upheld by this court while dismissing the first appeal preferred by the original judgment-debtor Onkar Shanker by its judgment dated 10th October 2003, and therefore after the final adjudication of the lis involved in the matter, there is no substance in the objections submitted by the appellants and as such the learned court below has rightly brushed aside these objections by the order impugned. Mr. Khet Singh has also argued that there is no semblance of proof that the disputed property is a Joint Hindu Family property, and as such the appellants, who are in fact legal representatives of the original judgment-debtor cannot maintain these objections on the anvil of the embargo created by the legislation under Rule 102 of Order 21 CPC. Submission of Mr. Khet Singh is that infact appellants have stepped in the shoes of the original judgment-debtor as his legal representatives and therefore while rejecting those objections, the learned court below has not committed any error much less an error of law. The learned counsel for the respondent decree-holder [10] has also resisted the present appeal by urging that the appellant objectors were aware about the suit and the execution proceedings but they were conspicuously silent and as such their objections are not entertainable by virtue of Section 6 of the Limitation Act 1963 (for brevity hereinafter referred to as 'the Act of 1963'). The submission of Mr. Khet Singh in substance is that the execution proceeding is pending since 2003 and the objections have been submitted belatedly and as such those objections are unworthy of any credit. The complete text of Section 6 of the Act of 1963 is reproduced as under:
6. Legal disability.- (1). Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third column of the Schedule.
(2) Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the time so specified.
(3) Where the disability continues up to the death of that person, his legal representative may institute the suit or make the application within the same period [11] after the death, as would otherwise have been allowed from the time so specified.
(4) Where the legal representative referred to in sub-section (3) is, at the date of the death of the person whom he represents, affected by any such disability, the rules contained in sub- sections (1) and (2) shall apply.
(5) Where a person under disability dies after the disability ceases but within the period allowed to him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died.
Explanation.- For the purposes of this section, 'minor' includes a child in the womb.
Learned counsel for the first respondent has also urged that successive applications under Order 21 Rule 97 CPC are not maintainable. According to him, earlier such objections were submitted at the behest of Mr. Madanlal and Mohani Devi and those objections were rejected by the learned executing court. At the cost of repetition, the learned counsel for the respondent has argued that the appellants have failed to produce any document to substantiate their plea that the property in question is a Joint Hindu Family property. Mr. Khet Singh, the learned counsel for first respondent, has also urged that submission of objections at the behest of appellants is nothing but an [12] afterthought inasmuch as when these objections were available to the appellants earlier then why they were not pressed into service, more particularly when in the estimation of the appellants the objections were sustainable in the eye of law. Thus, in sum and substance the submission of the learned counsel for the respondent is that all these objections are ornamental and these objections have been raised with a view to thwart the valid execution process. Mr. Khet Singh, the learned counsel for first respondent has placed reliance on the following legal precedents:
1.Altha Gopalakrishna Vs. Miryala Venkata Radha Krishna & Ors. (AIR 2004 AP 542),
2.Ramanlal Vs. Rukmani & Ors. [AIR 2004 Raj.73]
3. Mukesh Chouhan Vs. Ram Prasad & Anr. [2007 WLC (UC) 21],
4. Temple of Thakur Shri Mathuradassji Chhota Bhandar Vs. Shri Kanhaiyalal & Ors. [2008 (3) WLC 534],
5. Makhan Singh (D) by LRs. Vs. Kulwant Singh [AIR 2007 SC 1808], and
6. Capt. Arminder Singh Bedi Vs. Guru Nanak Dev University & Anr. [AIR 2010 HP 76].
In his rejoinder, Mr. Ushman Ghani, learned counsel for the appellants, has submitted that no objections were submitted on behalf of Mr. Madanlal and as such this sort of plea raised by the first respondent is not sustainable. While adverting to the nature of the property [13] as Joint Hindu Family property, the learned counsel for the appellants has urged that the property in question is of that nature is clearly apparent from a bare perusal of the objections. Lastly, the learned counsel for the appellants has argued that no other remedy is available to them except objections under Order 21 Rule 97 CPC. Mr. Usman Ghani, the learned counsel for the appellant, has also invited my attention to Rule 101 of Order 21 CPC, which reads as under:
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 such questions.
I have considered the rival submissions and throughly examined the impugned order in that background. With the assistance of the learned counsel for the first respondent, I have also perused the original judgment and decree, the judgment passed by this court in the first appeal affirming the judgment and decree passed [14] by the learned trial Court as well as the entire ordersheets of the learned executing court and the orders passed by the executing court from time to time.
From the ordersheets placed on record for my perusal by the learned counsel for the first respondent, it is amply clear that the execution of the decree is pending since 2003. At the threshold, execution was filed against the original judgment-debtor and thereafter during the pendency of the execution proceedings he expired and his legal representatives Smt. Mohani Devi and Madanlal were taken on record on 5th of January 2008. After substitution of Smt. Mohani Devi and Madanlal as judgment-debtors, an application was submitted on their behalf under Section 151 CPC raising objection about extension of time in favour of the decree-holder for depositing the amount and the said application was rejected by the learned executing court vide order dated 06.08.2011. Thereafter, on behalf of judgment-debtors, viz., Mohani Devi and Madanlal, objections under Section 47 CPC were submitted on the ground that the descriptions of the disputed property in the decree are not appropriate so as to identify the property and on that count alone the decree is not executable. The [15] objections submitted on behalf of the judgment-debtors under Section 47 were rejected by the executing court vide its order dated 26th November 2011 by a detailed order. Admittedly, neither in the application under Section 151 CPC, nor in the objections under Section 47 CPC, father of the appellant No.1 to 3, who was party to both these proceedings, has questioned the nature of the property. Moreover, no endeavour was made by him to seek any sort of protection against the execution of the decree on the anvil that property in question is a Joint Hindu Family property.
Therefore, my irresistible conclusion is that the objections submitted on behalf of the appellants were not genuine and they were, in fact, designed by them to stall the regular process of execution.
This Court in case of Mukesh Chouhan Vs. Ram Prasad & Anr. [2007 WLC (Raj) (UC) 21] has discouraged the practice of entertaining the applications/objections under Order 21 Rule 97 CPC on behalf of every obstructionist, on the strength of his mere possession on the disputed property, for its trial as a [16] suit. In case of Mukesh Chouhan (supra), the Court has decided that what mode is to be adopted while examining such objections submitted by an individual. In Para 18 of the judgment, the following observations are made:
As observed above, indisputably even a stranger has a right to obstruct and resist the decree and has locus standi to raise objection and it is for the Court to decide as to which of modes has to be adopted while examining objections raised and there cannot be hard and fast rule that whenever application is filed, such objection has to be tried as a regular suit by permitting either of parties to adduce evidence. Since in instant case there was no prima facie material on record to show independent right, title or interest over decreetal premises claimed by resister (third party) (Petitioner), learned trial Court took note of totality of facts brought by objector in his application and has not found any merit thereon.
On close scrutiny of the factual matrix this Court feels that the appellants are, in fact, toeing the lines of their father Madanlal and grandfather, who is the original judgment debtor, inasmuch as they are experimenting different tactics to cause obstruction in execution of the decree. In fact, while resisting the suit for specific performance of contract, Mr. Onkar Shanker, the original judgment-debtor, has flatly denied the execution of the agreement to sale and has categorized the agreement to sale as a spurious document. Then, he has changed his [17] stand by asserting that the property belongs to his wife.
After suffering the judgment and decree of the learned trial Court before this Court in the first appeal, Onkar Shanker persisted on the basis of his those defences, which on the face of it are inconsistent and self-contradictory. But, unfortunately he lost the battle. During execution proceedings, earlier applications/objections submitted on behalf of legal representatives of the original judgment-
debtor, viz., Mohani Devi and Madanlal were also designed on some other pretexts to stall the execution proceedings and these applications/objections also proved to be abortive and the learned court below rejected them. The objections submitted at the behest of the appellants purportedly under Order 21 Rule 97 CPC are therefore nothing but a device to prolong the execution proceedings, more particularly when the appellants have not placed on record any material whatsoever for holding any sort of enquiry. My this view is clearly fortified from a pronouncement of this Court in case of Temple of Thakur Shri Mathuradassji Chhota Bhandar Vs. Shri Kanhaiyalal & Ors. [2008 (3) WLC 534]. The Court in the case mentioned to supra has observed as under:
18. S.B. Civil First Appeal No.232/2005 can be dismissed only on the ground that successive application based on the same facts [18] and for the same relief could not have been entertained by the executing court.
Subsequently filed application under Order 21 Rule 97 CPC is in the name of the same temple. The executing court was right in holding that subsequently filed application under Order 21 Rule 97 CPC could not have been entertained in view of the earlier order dated 12th May, 2005. On merits also, I do not find any substance in the allegations leveled by the objectors under Order 21 Rule 97 CPC because of the reason that he failed to produce any material before the executing court for holding any inquiry and in a case where execution of the decree is resisted then the objector is required to place on record the sufficient material on the basis of which he can claim for entertaining his application and when application to object the execution of decree is filed. Without sufficient facts and without support of any material or proof, the executing court can be summarily dismissed the application. Therefore, I do not find any merit in the S.B. Civil First Appeal No.232/2005 and the same is also hereby dismissed.
The contention of the learned counsel for the appellants that the appellants are having independent right in the suit schedule property, in want of any material whatsoever to substantiate the same, is prima facie unworthy of any credit. On overall of marshaling of all the facts and circumstances of the instant case, any prudent man can draw this inference that the appellants are, in fact, claiming their rights over the property in question through their grandfather i.e. the original judgment-debtor. Thus, by virtue of Rule 102 of Order 21 CPC, the objections of the [19] appellants are not at all legally sustainable. The legal position is amply clear that resistance or obstruction in execution of a decree for possession of an immovable property is not maintainable at the behest of an individual, who is transferee pendent lite and such objections are entertainable at the instance of a third party who is having independent right or title in the immovable property. For this proposition, reliance can be profitably laid on a judgment cited by the learned counsel for the respondents in case of Altha Gopalakrishna Vs. Miryala Venkata Radha Krishna & Ors. (AIR 2004 AP 542). In Para 11 of the judgment, the Andhra Pradesh High Court has observed as infra:
11. However, one important fact brought to the notice of this Court by the counsel for the respondents, would, in fact, obviate the necessity to undertake any further adjudication. It is not in dispute that the petitioner is, claiming his rights through his mother. He did not claim any independent right in the suit schedule property.
The application filed by him could certainly have been entertained and adjudicated upon, had it been a case where he is claiming his rights independently. However, the record disclosed that his mother was very much a party to the suit and decree being defendant No.13, she is one of the judgment-debtors. The remedy provided under Rule 99 is for the benefit of 3rd parties, i.e. those who were not parties to the suit. Legal representative of judgment-debtor does not fit into the description "person other than judgment-debtor" employed in Rule 99 of [20] the CPC. For all practical purposes, the petitioner has to be treated as defendant and judgment-debtor No.13. In that view of the matter, the application filed by the petitioner is not maintainable. Therefore, the C.R.P. is dismissed, but without costs.
The core question that requires judicial scrutiny by this Court is how to ascertain the nature of the immovable property. This question arose for consideration before Hon'ble Apex Court in case of Makhan Singh (D) by LRs. Vs. Kulwant Singh [AIR 2007 SC 1808] and the Hon'ble Apex Court after thrashing out the matter in its entirety has laid down the under-mentioned propositions in Para 8 & 9 of the judgment.
8. The query was answered in paragraph 18 in the following terms:
"The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."[21]
9. The High Court has also rightly observed that there was no presumption that the property owned by the members of the Joint Hindu Family could a fortiori be deemed to be of the same character and to prove such a status it had to be established by the propounder that a nucleus of Joint Hindu Family income was available and that the said property had been purchased from the said nucleus and that the burden to prove such a situation lay on the party, who so asserted it. The ratio of K.V.Narayanaswami Iyer case (supra) is thus clearly applicable to the facts of the case. We are therefore in full agreement with the High Court on this aspect as well. From the above, it would be evident that the High Court has not made a simpliciter re-appraisal of the evidence to arrive at conclusions different from those of the courts below, but has corrected an error as to the onus of proof on the existence or otherwise of a Joint Hindu Family property.
This view of the Hon'ble Apex Court is also reiterated in a recent judgment of Himachal Pradesh High Court in case of Capt. Arminder Singh Bedi Vs. Guru Nanak Dev University & Anr. [AIR 2010 HP 76], wherein the Himachal Pradesh High Court has observed as infra:
"The estate of Baba Surinder Singh was mutated in favour of several persons including respondent No.2 and Smt. Raj vide mutation No.47 dated 31.7.1991. The mutation No.47 has not been assailed by the appellant. The bare perusal of Section 6 of the Act makes it clear that in this situation the estate of Baba Surinder Singh would devolve under Section 8 and not under Section 6 of the Act. In view of law laid down by the Supreme Court in the aforesaid judgments, respondent No.2 would inherit his share in the estate of Late Baba Surinder Singh in his individual capacity and not along with his son [22] appellant. Once this is the position then the appellant has no right to assail the sale dated 19.6.1993 made by respondent No.2 in favour of respondent No.1.
Thus, both these judgments clearly clinches the issue in favour of the respondents and on the strength of law laid down in these pronouncements, the contention of the appellants, that the property in question is a Joint Hindu Family property, can be conveniently dispelled and the contention therefore falls flat.
Applying the ratio decidendi of the judgment referred to supra, in the facts situation of the present case, there is no room of doubt to conclude that the property in question is not a Joint Hindu Family property. As the appellants have miserably failed to substantiate this assertion by cogent material, I found no fault in the order impugned.
Yet another judgment which is dilating on the issue involved in the present case, and on which the learned counsel for the respondents has placed heavy reliance, deserves due credence. In case of Ramanlal Vs. [23] Rukmani & Ors. [AIR 2004 Raj.73], a learned Single Judge of this Court has observed as infra:
(13) In view of the reasons given in the judgment in T. Lakshmipathi's case (supra), it is clear that the judgments of both the courts below dated 20.7.1982 and 17.11.1990 cannot be allowed to stand, in this case, there is specific finding of both the courts below that property in dispute was let out by the decree-holder Ramanlal in his own personal capacity. In view of the decree, it can be said that Harish Chandra (tenant) or any person claiming through Harish Chandra (tenant) cannot resist the decree for eviction against the tenant even if he is one of the co-sharer and may be one of the member of the joint Hindu family. It will be worthwhile to mention here that in family dispute, winning over the tenant for getting the possession of the property rented out by other is not unknown, rather it is becoming more common with the change of values.
By this one cannot be permitted to prompt the tenant to indulge in such tactics to either protect his possession against the lawful right of the person who put him in possession or to oblige rival claimant to the person by whose indulgence only he occupied the property. The tenant is under legal obligation to hand over the possession of the property to his landlord.
(14) In view of the above, reasoning given by the courts, below on assumption that since the property in dispute is joint Hindu family property and, therefore, letting out of the property by Ramanlal is to be treated as on behalf of the joint Hindu family is contrary to law as well is self contradictory inasmuch as that the courts below, while deciding issue No. 3, specifically recorded finding that the property was not let out by Ramanlal on [24] behalf of joint Hindu family and it was a finding of fact recorded by both the courts below itself and it is a finding of fact that the property was let out by Ramanlal only. The finding recorded by both the courts below on issue No. 3, so far as it relates that property was deemed to have been let out by Ramanlal on behalf of the joint Hindu Family, hence deserves to be set aside.
Analyzing the objection of the learned counsel for the respondents as enshrined under Section 6 of the Act of 1963, I feel persuaded to non-suit the appellants in this appeal. In my considered opinion, the frivolous and vexatious objections raised at the behest of an incumbent, who is a transferee pendente lite, are be deprecated in the strongest words so as to dissuade him from creating obstructions against a genuine decree-holder to reap the fruits flowing from a decree.
On a reflection of the facts of the case and the legal position as emerges out from the law cited at Bar by the learned counsel for the parties, the irresistible conclusion of this Court is that the general propositions of law laid down in Dr. K.L. Anand's case (supra) cannot come to the rescue of the appellants to succeed in their mission in stalling the valid process of execution of a decree. Contrary to it, the learned counsel for the respondents has succeeded [25] in persuading this Court to uphold the impugned order passed by the learned court below.
Before parting, I may hasten to add that the executing court must show promptness in rejection of such indiscreet objections at the instance of unscrupulous obstructionists to facilitate expeditious execution of a decree.
The upshot of the above discussion is that the appeal preferred by the appellants is bereft of any merit and devoid of any force, and accordingly the same is hereby dismissed.
There is no order as to costs.
(P.K. LOHRA), J.
arora/