Rajasthan High Court - Jaipur
Rajendra Kumar Chachan vs Banne Singh And Others on 21 January, 2013
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
In the High Court of Judicature for Rajasthan at Jaipur S.B.Civil Revision Petition No.50/2011 Rajendra Kumar Chachan-Petitioner vs Banne Singh and ors-Respondents Date of Judgment - 21st January,2013 Present HON'BLE MS. JUSTICE BELA M. TRIVEDI Mr.Sudhanshu Kasliwal Sr.Advocate along with Ms Suruchi Kasliwal for the petitioner. Mr.OP Mishra for respondent nos.1 and 2. Judgment By the Court:
1.The petitioner-judgment debtor-original defendant no.9 has invoked the revisional jurisdiction of this court under section 115 of CPC challenging the order dated 1.3.2011 passed by the Addl. District & Sessions Judge (Fast Track) No.5, Jaipur City Jaipur (hereinafter referred to as the executing court) in Execution Petition No.44/2010, whereby the executing court has dismissed the objection petition filed by the petitioner under section 47 of CPC.
2.The short facts giving rise to the present petition are that the petitioner had purchased the disputed property from the respondent nos.3 to 10, vide the registered sale deed dated 21st November,2007. The respondent nos 1 and 2 -original plaintiffs filed the suit being No.23/2008 (1086/2008) before the trial court claiming their right of pre-emption in the suit property. In the said suit the decree dated 25.8.2010 came to be passed on the basis of compromise arrived at between the parties. The said decree reads as under:
''??: ?????? ?? ??? ??????? ????????? ?????? 1 ?? 9 ????? ??????, ????? ??? ?????? ?????????? ?? ?????? ?????? ???? ???? ?? ?? ????????? ?????? 1 ?? 8 ?? ?????? ????? ????????? ?????? ???? ?????? 21.11.2007 ???? ?? ?? ??????? ???????? ?? ????????? ????? ????? ?? ?? ????????? ?????? ?? ??? ?? ???????? ????? ?????? ?? ?????? ???? ???? ??? ?????? ???? ?????? 21.11.2007 ??? ?? ????????? ?????? 9 ?? ??? ????? ???? ?????? ?? ??? ???????????? ?? ???? ????????? ??- ??????????, ????? ???, ??? ????? ?? ?????? ?????? ??? ?? ??? ???? ?? ????? ?? ?? ???? ?? ???????? ?? ???? ?? ?? ?????? ???? ?????? ???? ?????? 21.11.2007 ?? ?????? ???? 9,00,000/-( ?????? ?? ??? ?????) ?? ??? ??? ????????? ?????? 9 ?? ??? ???? ??? ???? ??????? ??? ??? ????????? ?????? 9 ?? ??????? ???????? ?? ???? ??-??? ?? ???????? ????? ?? ?? ?? ???? ????? ????? ?????? ?? ?????? ?? ??????? ??? ???? ??? ???? ???? ???? ????? ??? ??????? ?????????? ?????? ????? ????? ??????''
3.It appears that thereafter the respondents no.1 and 2-the decree holders-plaintiffs filed the Execution petition being no. 44/2010 on 28.10.2010 for the execution of the said decree, on the ground that the possession of the suit property was not handed over by the petitioner to them within the time limit fixed by the court. In the said execution petition, the petitioner-defendant no.9 filed an objection application under section 47 of CPC raising the objection that the concerned respondents-judgment-creditors had not paid Rs.9 lacs to the petitioner within two months of the decree and therefore the decree was not executable. The executing court vide the impugned order dated 1.3.2011 dismissed the said application of the petitioner, against which the present revision petition has been filed by the petitioner under section 115 of CPC.
4.It appears that the petitioner had earlier filed a writ petition challenging the impugned order before this court, however the writ petition was permitted to be withdrawn by the court granting liberty to the petitioner to file revision petition under section 115 of CPC. Accordingly, this revision petition was filed by the petitioner. Pending the revision petition, it appears that the possession of the said property was taken away from the petitioner pursuant to the order dated 26.5.2011 passed by the executing court on the application made by the decree holders. Thereafter, this court, after hearing learned counsel for the parties, vide the order dated 2.9.2011 directed to maintain status quo with regard to the property in question, and also directed that the matter be listed for final disposal at the admission stage on the next date of hearing. Since the petitioner was dispossessed from the suit property, he submitted an application under section 144 of CPC in the present revision petition seeking restoration of the possession, however, the said application was not pressed for by the learned Sr. counsel Mr. Kasliwal during the course of hearing of the revision petition.
5.It has been submitted by learned counsel Mr. Kasliwal for the petitioner that though there was no direction contained in the decree that the petitioner-judgment debtor was required to hand over the possession of the suit property first and then only the concerned respondents-judgment creditors had to pay the amount of Rs.9 lacs, the executing court misinterpreted the decree in question and rejected the objection application of the petitioner on the ground that the petitioner had not handed over the possession of the suit property to concerned respondents. According to Mr. Kasliwal, the execution petition filed by the decree holders was not maintainable in the eye of law inasmuch as they themselves had not complied with the condition of the decree in question, by not depositing the amount of Rs.9 lacs. Pressing into service, the provisions contained in sections 13 and 14 of the Rajasthan Preemption Act, 1966, as also the provisions contained in Order XX Rule 14 of CPC, he submitted that while passing the decree in the pre-emption suit, the court is required to specify a day for the payment of purchase money in the court and thereafter concerned defendant is required to deliver the possession, and that the concerned defendant could not be directed to hand over possession of the property in question prior to the decree holder making payment of purchase money. The learned Sr. counsel Mr. Kasliwal has also relied upon certain judgments of this court and other High Courts in support of his submissions which shall be dealt with if necessary to do so hereinafter.
6.Learned counsel Mr. OP Mishra appearing for respondent nos. 1 and 2 raising a preliminary objection submitted that the revision petition was not maintainable against the impugned order, and even otherwise the jurisdiction of the High Court under section 115 of CPC being very limited, this court should not interfere with the impugned order which otherwise does not suffer from any illegality. He further submitted that the respondent nos.1 and 2 are ready and willing to deposit the amount of Rs.9 lacs even with interest if directed by the court, pursuant to the decree in question and that they had also made an application before the executing court seeking permission to deposit the said amount. According to Mr. Mishra neither the provisions contained in sections 13 and 14 of the Rajasthan Pre-emption Act nor the provisions of Order XX Rule 14 would be applicable to the facts of the present case, the decree in question having been passed by the trial court on the basis of compromise arrived at between the parties.
7.So far as the preliminary objection raised by the learned counsel Mr. Mishra appearing for respondent nos. 1 and 2 is concerned, it may be stated that admittedly the petitioner had earlier filed the writ petition being no.3595/2011 challenging the impugned order. However, on the objection raised by the respondents regarding the maintainability of the said petition, the court had permitted the petitioner to withdraw the petition, granting liberty to challenge the impugned order by way of revision petition. Accordingly, the present revision petition has been filed by the petitioner under section 115 of CPC. Even otherwise the learned counsel Mr. Mishra has failed to point out as to how the revision petition would not be maintainable under section 115 of CPC. Although it is true that the scope of revision petition under section 115 after the amendment in 2002 has been confined to the proviso to section 115 of CPC to the effect that the High Court shall not vary or reverse any order made, or any order deciding the issue, in the course of a suit or other proceedings, except where the order,if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. In the instant case, if the Executing court had passed the order in favour of the petitioner, the proceedings would have been finally disposed of. The issue involved in the present revision petition being squarely covered under the said proviso to section 115, the court does not find any substance in the objection raised by learned counsel Mr. Mishra as regards the maintainability of the revision petition.
8.In the instant case, it is not disputed that the decree dated 25.8.2010 was passed by the trial court in the suit on the basis of the application filed by the petitioner along with the other defendants in the suit stating interalia that the petitioner-defendant no.9 did not want to contest the suit, and that if the plaintiffs paid Rs.9 lacs to him towards the purchase price of the suit property within one week, he would not have any objection if the suit was decreed in favour of the plaintiffs. In reply to the said application, the respondents-plaintiffs had stated interalia that the original sale deed dated 21.11.2007, be directed to be produced in the court, and that if the possession of the suit property was handed over by the defendant nos. 1 to 8 in favour of the defendant no.9, then the defendant no.9 be directed to hand over the vacant possession of the same to the plaintiffs and that the plaintiffs be granted two months time to deposit Rs.9 lacs towards the purchase price. The trial court after considering the said application and the reply, passed the detailed order decreeing the suit as per the decree mentioned hereinabove. From the bare perusal of the said decree, it transpires that the court had decreed the suit, declaring the registered sale deed dated 21.11.2007 executed by the defendant nos 1 to 8 as null and void and directed them to hand over the possession of the suit property to the plaintiffs and to enter names of the plaintiffs in place of the defendant no.9 in the said sale deed dated 21.11.2007, and accordingly get it registered with the office of Sub Registrar, Jaipur City Jaipur. The trial court further directed that with the consent of both the parties, a further condition is incorporated to the effect that the plaintiffs shall pay Rs.9 lacs towards the sale price to the defendant no.9 within two months,and if the defendant no.9 was in the possession of any part of the suit property, he would hand over the possession of the same to the plaintiffs during the said period. Thus, as per the requirement of the decree, the plaintiffs had to deposit Rs.9 lacs within two months of the decree and the defendant no.9 had to hand over the vacant possession of the suit property, if he was in possession, to the plaintiff within the said period. Admittedly, the respondent nos 1 and 2 plaintiffs did not deposit Rs.9 lacs within two months from the date of the said decree and filed the execution petition on 28.10.2010.
9.According to Mr.Mishra, the said respondent nos.1 and 2 had to seek permission of the court for deposing the said amount and therefore the said amount was not deposited, however subsequently separate application was made by them for depositing the said amount. The court does not find any substance in the said submission of Mr. Mishra, inasmuch as the concerned respondents-plaintiffs did not have to seek permission nor make separate application for depositing the said money, and in any case, the said application was filed by them on 22.8.2011 i.e almost one year after the decree was passed. That apart, the said application is still pending before the executing court and the amount of Rs.9 lacs has also not been deposited by the respondent nos. 1 and 2. As such, when the direction contained in the decree was to pay Rs.9 lacs to the petitioner, there was no need for the respondents no. 1 and 2 to make application before the executing court seeking permission to deposit the said amount in the court, and that too after about one year of the decree. At this juncture, it is pertinent to note that the possession of the suit property has already been taken away from the petitioner pending this revision petition, pursuant to the order dated 26.5.2011 passed by the Executing court. Though the petitioner had filed an application under Sec. 144 of CPC for restoration of possession, on 14.3.2012, however, the said application was not pressed for by the learned counsel Mr. Kasliwal during the course of arguments. Hence, the court does not express any opinion on the order dated 26.5.2011, passed by the executing court or on the application filed by the petitioner under section 144 of CPC.
10.As transpiring from the decree in question, directions were to the effect that the plaintiffs shall pay the amount of Rs.9 lacs to the defendant no.9 within two months, and defendant no.9 shall hand over the possession if any of the suit premises within the said period. In the opinion of this court, both the directions had to be complied with during period of two months. The decree nowhere stated that the plaintiffs shall pay Rs. 9 lacs to the defendant-9 only if the defendant no.9 handed over the possession of the suit premises to the plaintiffs, nor it was stated that the plaintiffs shall first pay Rs.9 lacs to the defendant no.9, and then only the defendant no.9 shall hand over the possession to the plaintiffs. Under these circumstances, the trial court has committed an error in misinterpreting the decree in question and by holding that since the possession was not handed over to the plaintiffs by the objector-defendant no.9, his objection application was required to be rejected. The order under challenge being illegal and perverse, the same deserves to be set aside, and the executing court is required to be directed to decide the execution application pending before it in accordance with law.
11.In that view of the matter, the impugned order dated 1.3.2011 passed by the executing court is set aside. The executing court is directed to decide the execution petition No. 44/2010 and other applications pending before it in accordance with law. The revision petition stands allowed accordingly.
(BELA M. TRIVEDI) J.
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Om Prakash PA