Himachal Pradesh High Court
Sureshwar Thakur vs Sandeep Goswami And Gaurav on 19 July, 2017
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Objection Petition No. 48 of 2016 in Execution Petition No. 17 of 2012.
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Reserved on: 18.05.2017.
Date of Decision: 19th July, 2017.
Sh. Ashok Kumar and others .....Decree holders/ Non-objectors.
Versus Shiv Singh (since deceased) through his legal heirs ....JudgementDebtors/ r Objectors Coram The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Decree holders: Mr. Ajay Kumar, Senior
Advocate with Mr. Dheeraj
Vashisht, Advocate.
For Judgement Debtors No.1 (a) to 1(e): Mr. Karan Singh Kanwar, Advocate.
Sureshwar Thakur, Judge.
Plaintiffs, namely, Uday Ram, Ashok Sharma, Sandeep Goswami and Gaurav, instituted a suit against sole defendant Shiv Singh (now deceased) for specific performance of agreement of sale on 26.06.2004 and for ::: Downloaded on - 23/07/2017 23:57:22 :::HCHP 2 spefific performance of supplementary agreement of sale of 31.12.2004, agreements whereof stood executed with respect to land comprised in Khata Khatauni No.1/1 min, .
Khasra Nos. 13/7, 23/14/7, 15/9, 21/16/9, 25/17/10 and 19/10 measuring 100bighas situated at Mauza Hari Ka Kheel, Tehsil Kasauli, District Solan, H.P.
2. The suit of the plaintiffs stood decreed as compromised. A compromise decree, in sequel to a joint application preferred before this Court, on behalf of the parties, application whereof was cast under the provisions of Order 23, Rule 3 read with Section 151 of the CPC, application whereof is comprised in Ex. C-1, besides affidavits comprised in Ex.C-2 and in Ex. C-3 stand appended thereto, stood in consonance therewith hence prepared. A compromise decree anvilled upon the afore-referred exhibits, records an explicit mandate therein of the sole defendant being obliged to execute a sale deed in favour of all or any of the plaintiff(s) or their nominees. However, the demise of sole defendant Shiv Singh occurred in the interregnum since the recording of a compromise decree upon Civil Suit No. 39 of 2005 till the preferment of the instant execution petition at the instance of the decree ::: Downloaded on - 23/07/2017 23:57:22 :::HCHP 3 holders. The decree holders/transferees namely, Madan Lal and Roshan Lal excepting one Ashok Kumar and one Gaurav were not arrayed as co-plaintiffs in Civil Suit No. 39 of 2005.
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However, as afore referred with there existing an explicit mandate in the compromise decree pronounced by this Court upon Civil Suit No. 39 of 2005, wherein the sole defendant stood entailed with an obligation to execute the relevant deed of conveyance vis-a-vis all or any of the plaintiff or their nominees, consequently, the non arraying of one Madan Lal and of one Roshan Lal, impleaded as co-
decree holders in the instant execution petition, theirs being the purported nominee(s) of some of the co-plaintiffs, as co-
plaintiffs in the apposite civil suit, would not frustrate their endeavour to along with other co-decree holders, who, however, stood arrayed as co-plaintiffs in the apposite suit, hence seek execution of the compromise decree recorded by this Court in Civil Suit No. 39 of 2005, unless, of course evidence of potent vigour stands adduced in respect of theirs not standing validly constituted under the apposite deed(s), as nominee(s) of one Uday Ram and of one Sandeep Goswami., evidence whereof is, however, amiss. In consonance with the explicit mandate, occurring in the ::: Downloaded on - 23/07/2017 23:57:22 :::HCHP 4 compromise decree, wherein a facilitation is purveyed upon the nominee(s) of co-plaintiffs, constituted under a deed/instrument validly executed inter se co-plaintiffs .
concerned vis-a-vis them, to enforce the compromise decree of specific performance against the defendant(s) concerned, an agreement/nomination deed stood executed inter se co-plaintiff Uday Ram and co-plaintiff Sandeep Goswami, vis-a-vis nominees/assignees constituted thereunder, namely, one Madan Lal and one Roshan Lal, whereupon, in addition to other co-plaintiffs/co-decree holders namely one Ashok Kumar and one Gaurav, with theirs hence standing assigned the benefits of the compromise decree, rendered them alike one Ashok Kumar and one Gaurav to seek their impleadment as co-decree holders in the execution petition. A corollary of the aforesaid, is that the arraying of Madan Lal and Ashok Kumar as co-decree holders in the array of decree holders in execution petition No. 17 of 2012 when is in tandem with also holds concurrence with the explicit mandate recorded in the compromise decree in respect of the nominees/assignees of co-plaintiffs, assignment(s) whereof occurring under a valid instrument/deed executed inter se them vis-a-vis the ::: Downloaded on - 23/07/2017 23:57:22 :::HCHP 5 relevant assignors/settlors thereof, thereupon, holding the apt leverage to enforce the compromise decree against the defendant(s)/Judgment debtors occurring in the memo of .
parties of the execution petition, hence not rendering the execution petition to be mis-constituted.
3. Upon notice of the execution petition, being served upon the judgment debtors, the latter proceeded to institute objections with respect to the execution of the compromise decree recorded by this Court in Civil Suit No. 39 of 2005. The essence of the objections reared by the JDS with respect to the executability of the compromise decree recorded by this Court is (a) of the decree holders not directly benefiting from the decree rather theirs disguising to be beneficiaries thereof, especially for bestowing the benefits of the decree upon JD No.2, who otherwise being a non agriculturist, was, unless, he obtained the requisite permission from the appropriate government for executing the sale deed with respect to the suit property or unless given his being under a validly recorded instrument/deed executed inter se the relevant co-plaintiffs/decree holders vis-a-vis him, hence, stood assigned the benefit(s) of the decree, thereupon barred to receive the benefit(s) of the ::: Downloaded on - 23/07/2017 23:57:22 :::HCHP 6 compromise decree. (b) For overcoming or obviating the ill effects of the aforesaid omissions, JD No.2, namely Subhash Chand colluding with the decree holders for his hence .
obtaining its benefit, benami or disguisedly or in a prohibited way(s). (c) The compromise decree being stained with a vice of active suggestio falsi and suppresio veri, hence, its dismissal being warranted.
4. The purported benamidar, of sale deed(s) concerted to be executed with respect to the suit property, is, one Subhash Chand, who stands arrayed as judgment debtor No.2 in the array of judgment debtor(s) in the instant execution petition. The arraying of Subhash Chand as JD No.2 in the array of judgment debtor(s) in the instant execution petition, has ensued from deceased sole defendant Shiv Singh bestowing under a unregistered testamentary disposition, his estate upon him. In sequel whereof, the apposite order, attesting mutation vis-a-vis him with respect to the land borne in the relevant unregistered testamentary disposition, stood recorded. However, the validity of the unregistered testamentary disposition executed by deceased sole defendant vis-a-vis Subhash Chand also the mutation in sequel thereto sanctioned in his ::: Downloaded on - 23/07/2017 23:57:22 :::HCHP 7 favour, is the subject matter of a lis inter se the natural heirs of deceased sole defendant Shiv Singh and the aforesaid Subhash Chand. Given the validity of execution of an .
unregistered testamentary disposition whereunder deceased testator Shiv Singh bestowed the suit property upon one Subhash Chand also given the validity of mutation(s) attested in sequel thereto, being subjudice, thereupon, the counsel for the judgment debtors contends, that with there also at this stage occurring a dispute with respect to Subhash Chand validly inheriting the estate of deceased sole defendant Shiv Singh, against whom a compromise decree stood pronounced, renders, any pronouncement upon JD No.2, namely, Subhash Chand Bhalla, for his executing the deed of conveyance with respect to the suit property vis-a-vis the decree holders, for hence, satisfactory execution of the compromise decree standing begotten, to be unbefitting besides insagacious, especially with Civil Suit borne in Annexure Ob-5, being decreed vis-a-vis the plaintiffs/judgment debtors concerned, would beget the ill fate of JD No.2 being now impermissibly directed to execute a deed of conveyance in respect of the suit property vis-a-vis the decree holders. However, the aforesaid ill consequence(s) ::: Downloaded on - 23/07/2017 23:57:22 :::HCHP 8 as stand contemplated to occur, appear to stand engendered by surmises, preeminently when by way of abundant caution all the natural heirs of deceased sole .
defendant, Shiv Singh stand arrayed in the execution petition as co-judgment debtors along with JD No.2 also when JD Subhash Chand is arrayed as co-judgment debtor along with them, thereupon, the effect of any decision pronounced by the Civil Court concerned upon civil suit borne in Annexure Ob-5, would not affect the rights, if any, bestowed under a registered deed of conveyance as may be directed to be executed by the JD(s) concerned vis-a-vis the decree holders, "unless", the sale deed as may be directed to be executed is also thereafter subjected to a challenge. Significantly also the aforesaid ill consequences contemplated by the counsel for the JDS, cannot undermine the efficacy of the executabale decree, whereupon, on demise of sole defendant Shiv Singh, his estate is encumbered with the apposite decretal liabilities, for ensuring peremptory satisfactory discharge whereof, his legal heirs, even if they succeed in Civil Suit borne on Annexure OB-5, would hence be disabled to extinguish the decretal liabilities encumbered upon the estate of one Shiv Singh.
::: Downloaded on - 23/07/2017 23:57:22 :::HCHP 94. Be that as it may, what is of more importance, is the espousal of the Jds, that all the co-decree holders are merely assaying to benefit JD No.2/Subhash Chand also the .
latter being the purported benamidar of the registered deed of conveyance, if any, as may be directed to be executed by this Court, for hence begetting satisfactory execution of the compromise decree, espousal(s) whereof prima facie may beget satiation from (a) admission occurring in the written statement, comprised in Annexure Ob-6, instituted by Subhash Chand to Civil Suit borne on Annexure Ob-5, admission whereof portrays, his defraying at the instance of deceased sole defendant Shiv Singh, money to the latter's brother also money to the latters' son(s), (b) admission occurring in Annexure Ob-7, Annexure whereof comprises a petition instituted before this Court under Section 482 of the Cr.P.C., for quashing of FIR No. 5/2014 of 05.01.2014 registered at Police Station, Dharamapur, District Solan, H.P., constituting offences under Sections 420, 465, 467, 468, 471 of the IPC, petition whereof stands supported by an affidavit sworn by one Subhash Chand, in respect of his, in sequel to a compromise decree being pronounced by this Court in Civil Suit No. 39 of 2005 on 24th July, 2006, hence depositing the ::: Downloaded on - 23/07/2017 23:57:22 :::HCHP 10 sale consideration of Rs.28.50 lacs, on 10.10.2006, before this Court. The cumulative effect of the aforesaid admissions occurring in the apposite written statement, comprised in .
Annexure Ob-6, furnished by Subhash Chander to the plaint comprised in Annexure Ob-5, wherein, they assail the validity of the unregistered testamentary disposition executed vis-a-
vis him by the deceased testator/sole defendant Shiv Singh and in Annexure Ob-7, is of may be prima facie the beneficiary of the testamentary disposition, r even if, he, dehors the aforesaid inference(s) is may be directed by this Court to execute a sale deed vis-a-vis all co-decree holders, hence may be concerting to ensure his may be disguisedly deriving benefits of the compromise decree besides all the decree holders prima facie rendering themselves to be construable to be merely his surrogates, also theirs may be prima facie colluding with JD No.2, for enabling him to derive the benefits of any satisfactory execution being ordered by this Court with respect to the compromise decree. The aforesaid tentative prima facie inference(s) drawn from the admission(s) aforesaid occurring in Annexure Ob-6, annexure whereof constitutes the written statement filed by the Judgement debtor No.2 and from Annexure Ob-7, annexure ::: Downloaded on - 23/07/2017 23:57:22 :::HCHP 11 whereof constitutes a petition instituted before this Court under Section 482 of the Cr.P.C., wherein, JD No.2, Subhash Chander seeks quashing of FIR No. 5/2014 of 05.01.2014 .
registered at Police Station, Dharamapur, District Solan, H.P., under Sections 420, 465, 467, 468, 471 of the IPC, also may engender a further inference that if hence the compromise decree whose satisfactory enforcement is concerted by the co-decree holders is ordered to be hence put to satisfactory execution, thereupon, may be public policy barring, entering of benami transaction may prima facie, come to be prejudiced. Besides with this Court standing seized with Civil Suit comprised in Annexure Ob-8, wherein, judgment debtors/objectors concerned, assail the validity of the compromise decree recorded by this Court on 24.07.2006 in Civil Suit No. 39 of 2005, on grounds holding the closest tandem and concurrence with the objections reared hereat by them, specifically with respect to the entire transaction concerted to be fructified by all the co-decree holders, being a sham and a benami transaction, civil suit whereof is still awaiting adjudication being made thereon, corollary whereof, is that if any satisfactory execution is ordered by this Court vis-a-vis the compromise decree, it hence ::: Downloaded on - 23/07/2017 23:57:22 :::HCHP 12 entailing the ill consequence of this Court tacitly prohibiting the co-ordinate Bench of this Court which is seized of a civil suit comprised in Annexure Ob-8, to make a just and fair .
pronouncement thereon rather its presenting it with a fait accompli. For obviating the aforesaid consequence(s), besides for avoiding rendition of an intra se conflicting verdict hereat vis-a-vis upon Civil Suit, borne on Annexure Ob-8, it is deemed fit, that till a conclusive binding decision is recorded by the co-ordinate Bench of this Court upon civil suit, comprised in Annexure Ob-8, hence to defer recording of a decision upon the instant execution petition and upon the objections. Moreover, the impact, if any, of acquiescences of objectors/co-Jds concerned arising from theirs withdrawing from the Registry of this Court, the sale consideration would also be considered subsequent to a pronouncement recorded by this Court, in Civil Suit, comprised Annexure Ob-8. List after three months.
(Sureshwar Thakur) 19 July, 2017 th Judge.
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