Punjab-Haryana High Court
(O&M;) Krishan Lal vs Sardara Singh on 4 September, 2014
CR No.2557 of 2001 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CR No.2557 of 2001 (O&M).
Decided on:-September 4th, 2014.
Krishan Lal (dead) through his LRs. .........Petitioner.
Versus
Sardara Singh (dead) through his LRs. .........Respondent.
CORAM: HON'BLE MR. JUSTICE DR. BHARAT BHUSHAN PARSOON.
*****
Argued by:- Mr. Sudhir Aggarwal, Advocate
for the petitioner.
Mr. R.S. Budhwar, Advocate
for the respondent.
Dr. Bharat Bhushan Parsoon, J.
In this civil revision petition, challenge has been made by Krishan Lal judgment-debtor, petitioner herein (since deceased and represented by his LRs) against dismissal of his objection petition vide impugned order of 14.11.2000 passed by the then Additional Civil Judge (Senior Division), Kurukshetra.
2. Claim of the petitioner-JD is as below:
(i) Neither the JD was served nor service had ever been refused;YAG DUTT 2014.09.09 12:55 I attest to the accuracy and integrity of this document CR No.2557 of 2001 -2-
(ii) The reports regarding refusal of the JD were procured one by the decree-holder causing prejudice to the JD;
(iii) The execution petition was filed belatedly where land more than involved in litigation was taken from the JD. The subject matter of the decree was land measuring 76 Kanal 15 Marlas whereas sale deed by the Local Commissioner was executed for land measuring 90 Kanal 17 Marlas; and,
(iv) The execution petition was time barred and thus was not maintainable.
3. Per contra, claim of Sardara Singh decree-holder, respondent herein (since deceased and represented through his LRs) is that the JD is unscrupulously making one plea or the other for the last 60 years and has been successfully avoiding execution of the decree though he is bound by the same and cannot wriggle out of it.
4. Arguments advanced by the counsel for the parties have been heard while appreciating the attending facts and circumstances on record.
5. At the outset, it may be mentioned that both the parties are now no more and are being represented by their legal heirs.
6. The decree dated 30.7.1966 is under execution. On filing of the execution application, notice was issued to the JD but he had refused to receive the summons. The Executing Court gave still another opportunity to him to appear by ordering service through substituted mode but despite having been served through that mode as well, he did not appear to defend his claim.
7. It is, rather, worth notice that the JD was continuing to be at war with the decree-holder. If we glance through the chain of events after filing of this execution petition by the decree-holder, the JD rather became alert further and in the year, 1991, when he had come to know of filing of the YAG DUTT 2014.09.09 12:55 I attest to the accuracy and integrity of this document CR No.2557 of 2001 -3- present execution petition thereafter, he had filed the suit which he later withdrew. Observations of the lower court in this regard are to the following effect:
"There is nothing on the file to say that the applicant-JD who kept on litigating against the respondent-DH on one pretext or the other and who himself has instituted a suit in the year 1991 at Kurukshetra was having no knowledge of the present execution. Not even this, it is further proved on the file that the applicant came to know about the impugned execution in the year 1991 and thereafter, he filed the suit challenging the sale deed and execution proceedings, but later on withdraw that suit. It means the applicant was in the knowledge of the execution in the year 1991 itself but despite this he filed the present objections on 21.2.1995 after about 4½ years of the final order of execution."
8. There is no evidence whatsoever to support the claim of the petitioner-JD that neither any proper notice was served upon him in the execution proceedings nor he had refused service. Record of the Executing Court cannot be belied which shows in no uncertain terms that despite service, the JD did not appear. Thus, plea of the petitioner-JD that he was having no knowledge about pendency of the execution petition, is not tenable.
9. So far as ground of execution petition having been barred by limitation, pressed into service by the JD with full force, is concerned, it is important to notice that even after passing of the decree under execution, he had been keeping the decree in litigation and thus had been delaying and dilating execution of the same himself.
10. Before embarking upon detailed discussion on this aspect, it would be worth notice that fertile brain of the JD was not allowing the matter to come to an end. Before adjudication of further controversy in this petition, it would be important to take stock of the relevant facts.
YAG DUTT 2014.09.09 12:55 I attest to the accuracy and integrity of this document CR No.2557 of 2001 -4-11. Krishan Lal, petitioner-JD had acquired the suit land through a pre-emption decree amount whereof had been paid by Sardara Singh, respondent/decree-holder. It was in the year 1959.
12. To elaborate, Sardara Singh had entered into an agreement for purchase of the property then in litigation from Krishan Lal for a sum of Rs.5,000/-. Possession of the land was to be given to the purchaser Sardara Singh after obtaining the same by Krishan Lal JD, petitioner herein from the vendees of the pre-emption suit. Some dispute arose between the contracting parties and the matter with consent of the parties was then referred to the arbitration of the two named persons. Award dated 24.2.1965 was given by the Arbitrators. Since sale price of Rs.5,000/- had already been paid by Sardara Singh to Krishan Lal in terms of the agreement to sell, Krishan Lal was required to execute the sale deed. This Award was got registered on 8.6.1965. It was made Rule of the Court on 30.7.1966. Appeal against this order was dismissed on 27.7.1967. When the Award was made Rule of the Court, the decree was passed in favour of Sardara Singh for specific performance of the agreement on payment of Rs.5,000/- which concedingly already stood paid to the petitioner/JD Krishan Lal.
13. Despite the fact that the Award had been made Rule of the Court, JD Krishan Lal vide sale deed of 6.3.1965 sold half of the land (which was subject matter of the agreement to sell) to one Sajjan Singh and got the said sale pre-empted through his sons Mohan Lal and Madan Lal by way of consent decree suffered by Sajjan Singh against him.
14. It is very interesting to note that on the basis of the said compromise decree suffered by vendee Sajjan Singh in favour of pre-emptors Mohan Lal and Madan Lal sons of JD Krishan Lal, where they had filed a suit for one-half share of the land against Sardara Singh YAG DUTT 2014.09.09 12:55 I attest to the accuracy and integrity of this document CR No.2557 of 2001 -5- impleading even their own father Krishan Lal as one of the defendants. It was claimed therein that possession of Sardara Singh on the suit land was that of a trespasser.
15. It is worth notice that Sardara Singh-DH, on the other hand, had claimed that he was having a decree of specific performance of contract of sale against Krishan Lal-JD. Since entire consideration of the agreement to sell was paid by Sardara Singh and the said matter had completely and finally been settled by the Arbitrators in the Award dated 24.2.1965 which had already been made Rule of the Court on 27.7.1966. It had been a clear finding therein that name of Sajjan Singh was included in the agreement of sale fictitiously. It was further concluded that Sardara Singh now decree- holder was the only real purchaser of the land in question and no one else had anything to do with the same.
16. Looking from another angle, when Award of 24.2.1965 was already operating against Krishan Lal, any sale subsequently made by him on 6.3.1965 in favour of Sajjan Singh, was not valid. In short, Krishan Lal had no right, title or interest in the suit land after having received the entire amount of Rs.5,000/- which had formed consideration of the then agreement to sell executed by Krishan Lal in favour of Sardara Singh. Thus, claim of Mohan Lal and Madan Lal that Sardara Singh was in possession as a trespasser did not stand legal scrutiny.
17. Plea of the JD is that sale of land could be effected by him till the Award was made Rule of the Court. It is not a correct plea. In fact, JD Krishan Lal could not have sold the land after pronouncement of the Award and if any sale was made, that is not binding on the decree-holder.
18. Suit filed by Mohan Lal and Madan Lal sons of Krishan Lal YAG DUTT 2014.09.09 12:55 I attest to the accuracy and integrity of this document CR No.2557 of 2001 -6- was decreed on 10.3.1977. Thereafter, JD Krishan Lal had filed yet another suit on 25.10.1977 for possession of other parcel of land measuring 26 Kanal 9 Marlas alleging that the said land had been leased out by him to one Charanjit Singh (impleaded as defendant No.2 in the said suit) for 10 years i.e. since Kharif 1959. It was disclosed that even after expiry of the lease period, Charanjit Singh had continued to be in occupation of the land.
19. When entire sale consideration of Rs.5,000/- of agreement to sell had been paid by Sardara Singh to Krishan Lal resulting in Award dated 24.2.1965 against Krishan Lal, he had left with no right, title or interest in the suit land and his version that part of such land i.e. measuring 26 Kanal 9 Marlas had been given on lease to Charanjit Singh, was unacceptable.
20. Even looking from another angle, possession of Sardara Singh on the entire land was pursuant to agreement to sell dated 5.3.1959 and Section 53-A of the Transfer of Property Act, 1882 (hereinafter mentioned as the Act) was operating to the rescue of Sardara Singh. Though in this suit, Krishan Lal was declared as owner but protection of possession under Section 53-A of the Act was provided to Sardara Singh. All the same, suit of Krishan Lal filed against Charanjit Singh, however, was dismissed on 11.1.1982.
21. In appeal, preferred by Krishan Lal, finding applicability of Section 53-A of the Act in favour of Sardara Singh, thus, suit of Krishan Lal in respect of land measuring 26 Kanal 9 Marlas also stood decreed in his favour in the first appeal on 16.10.1982.
22. In both the Regular First Civil Appeals viz. RSA No.2531 of 1982 regarding land measuring 26 Kanal 9 Marlas and RSA No.2040 of 1978 regarding land measuring 64 Kanals 5 Marlas, the main question was YAG DUTT 2014.09.09 12:55 I attest to the accuracy and integrity of this document CR No.2557 of 2001 -7- as to what was the effect of Award dated 24.2.1965 whereby Krishan Lal was held liable to execute sale deed in favour of Sardara Singh? Thus, it is to be specifically mentioned that notwithstanding that the Award dated 24.2.1965 had been made Rule of the Court on 30.7.1966 and the decree was accordingly made on 30.7.1966 by impugning the entire matter, it was kept alive by JD Krishan Lal.
23. Adjudicating both the Regular Second Appeals, this Court on 8.8.1989 had come to a firm finding that after pronouncement of Award on 24.2.1965, the matter in dispute having been referred to the Arbitrator by the parties on 23.1.1965, Krishan Lal could not transfer the suit land in favour of Sajjan Singh so as to affect the right of Sardara Singh under the Award.
24. During the course of hearing of this petition, copy of judgment of 8.8.1989 rendered by this Court was shown and since there was no dispute, the said copy has been kept on record. Findings of this Court vide judgment dated 8.8.1989 in RSA No.2531 of 1982 and RSA No.2040 of 1978 are to the following effect:
"After hearing the learned counsel for the parties and going through the case law cited at the bar, I am of the considered view that the whole approach of the Courts below in coming to the conclusion that the award dated 24.2.65 did not create any title or interest in Sardara Singh unless it was registered and made a rule of the Court, was wrong, illegal and misconceived. The matter has been discussed by the Supreme Court in Satish Kumar's case (supra), wherein it has been held that the award is not a mere waste paper but has some legal effect. It is final and binding on the parties and it cannot be said that it is a waste paper unless it is made a rule of the Court. The conferment of exclusive jurisdiction on a Court under the Act does not make an award any the less binding than it was under the provisions of the Second Schedule of the Code of Civil Procedure. The award is, in fact a final adjudication of a Court of the parties' own choice, and until impeached upon YAG DUTT 2014.09.09 12:55 I attest to the accuracy and integrity of this document CR No.2557 of 2001 -8- sufficient grounds in an appropriate proceeding, an award, which is on the face of it regular, is conclusive upon the merits of the controversy submitted. As between the parties and their privies an award is entitled to that respect which is due to judgment of a Court of last resort."
x x x "It is, therefore, quite evident that the award dated 24.2.65 did create certain rights in Sardara Singh with respect to the suit land since he has paid the entire sale price of Rs.5,000/- to Krishan Lal and also got the possession thereof in pursuance of the agreement. Krishan Lal was left with no right or interest therein and was, therefore, estopped to make any alienation in respect thereof as to affect the rights of Sardara Singh. The question of registration was immaterial because Sardara Singh was not enforcing the award as such at that time. Admittedly, the award was registered on 8.6.65 and not only that it was even made the rule of the Court on 30.7.66."
x x x "Krishan Lal by his own act and conduct rather tried to nullify the effect of the award by transferring the half of the suit land in favour of Sajjan Singh. It may be noticed here that Sajjan Singh was not a party to either of the two suits nor he ever challenged the arbitration proceedings or the award on the ground of agreement of sale dated 5.3.1959. It was only Krishan Lal who sold the land to Sajjan Singh and through his sons got the said sale pre-empted in which Sajjan Singh suffered a consent decree. It is, therefore, evident that Sajjan Singh never challenged the arbitration proceedings but Krishan Lal in order to wriggle out or to nullify the effect of the award made the said sale in favour of Sajjan Singh which he was not entitled to. Under Section 52 of the Transfer of Property Act, the restriction is on the transferor and not on the transferee as such. Transferee gets whatever rights or title the transferor had at the time of sale. Since Krishan Lal had no right, title or interest in the suit property after the award, he could not transfer the same in favour of Sajjan Singh on 6.3.65."
25. Both the Regular First Appeals were accepted. Judgment and decree of the courts below had been set aside while dismissing the suit of the YAG DUTT 2014.09.09 12:55 I attest to the accuracy and integrity of this document CR No.2557 of 2001 -9- plaintiffs. It is a conceded fact that Special Leave to Appeal (Civil) No.14308 of 1989 against this verdict of this Court was dismissed on 2.12.1994 by Hon'ble Supreme Court of India.
26. It is, thus, noteworthy that it is the JD himself who had dragged the decree dated 30.7.1966 (whereby the Award was made Rule of the Court) in litigation even till Hon'ble Supreme Court of India from where the judgment came on 2.12.1994. Execution petition had been filed in between i.e. on 12.10.1990 when the sale deed of part of the decreed land executed by JD Krishan Lal was held to be illegal and the decree-holder was declared as owner of that land as well.
27. It had been noticed that the JD in the objection petition had not mentioned these details and thus, it was a clear case of suppression of material facts. By no means findings of the Executing Court contained in para 18 thereof can be faulted. These are correctly made and for reference are reproduced as below:
"This entire story has been suppressed by the applicant and perhaps on this ground alone, it can be said that the present objections are not maintainable because even the applicant-JD had not only lost the battle upto the Hon'ble Supreme Court but he had also failed to show any prima-facie ground to held the impugned decree unexecutable or time barred."
28. In short, the dispute between the parties became final only on judgment of this Court rendered on 8.8.1989. Because of legal skirmishes brought in from here and there by the JD, the decree-holder was not having any clear order to get decree dated 30.7.1966 executed. After the decree dated 30.7.1966, the decree-holder was rendered handicapped because JD Krishan Lal had challenged the decree as well as the proceedings in the subsequent litigation, which remained pending and became final only on YAG DUTT 2014.09.09 12:55 I attest to the accuracy and integrity of this document CR No.2557 of 2001 -10- 8.8.1989.
29. The execution petition filed on 12.10.1990 thus cannot be said to be time barred. It is worth notice that the same conclusion was drawn vide order dated 3.8.1991 by the Executing Court which order has not been challenged by the petitioner-JD. Coming heavily on the JD, observations of the Executing Court with approval are reproduced as below:
"Similarly, in the present case, after decree in favour of respondent-DH Sardara Singh on the basis of the Award, the applicant-JD challenged that decree as well as the proceedings in subsequent litigations which remained pending and become final in the year 1989 and if it so, the execution filed by Sardara Singh in the year 1990 cannot be said to be time barred. Not even this, this very conclusion was drawn by Hon'ble Executing Court vide order dated 3.8.1991. Resultantly, by no stretch of imagination, it can be said that the execution filed by the respondent-DH was time barred. On the other hand, it comes out that the applicant-JD is debarred by his own act and conduct by filing these objections in view of the fact that he has suppressed true and material facts from this court by suppressing the factum of two other litigations and their decision by the Hon'ble High Court in the year 1989.
Resultantly, there is nothing on the file to say that the execution No.12/10/90 decided on 7.9.1991 with respect to the judgment dated 30.7.1966 was time barred."
30. The next objection of the JD is that sale deed of his land executed by the Local Commissioner in terms of orders of the Executing Court had gone far and beyond the lis involved in the decree and thus, was not a legal document. It has been seen that total land is 90 Kanal 14 Marlas. Sale deed is of the same quantum of land. Due to fertile brain of JD Krishan Lal, he had bifurcated the litigation with regard to land measuring 64 Kanal 5 Marlas and another for 26 Kanals 9 Marlas, total of which comes to 90 Kanal 14 Marlas. With respect to 64 Kanal 5 Marlas, Regular Second Appeal No.2040 of 1978 of decree-holder Sardara Singh and with regard to land YAG DUTT 2014.09.09 12:55 I attest to the accuracy and integrity of this document CR No.2557 of 2001 -11- measuring 26 Kanal 9 Marlas is RSA No.2531 of 1982 taken together had been accepted on 8.8.1989. To suffer repetition, unsuccessful challenge to this verdict of this Court was made by the JDs when Special Leave to Appeal No.14308 of 1989 against the entire lis of 90 Kanal 14 Marlas was dismissed.
31. It is, rather, to be noticed that objection petition of the JD when similar objections had already been dealt with and decided by the Executing Court on 3.8.1991 is an abuse of process of the court. Even otherwise, this objection petition is barred by limitation.
32. Keeping in view the totality of facts and circumstances as discussed above, no ground is made out to interfere with the impugned order and affirming the same, this petition being without any merit, is dismissed with costs of Rs.25,000/-.
(Dr. Bharat Bhushan Parsoon)
th
September 4 , 2014 Judge
'Yag Dutt'
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. Whether to be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in the Digest? Yes YAG DUTT 2014.09.09 12:55 I attest to the accuracy and integrity of this document