Punjab-Haryana High Court
Jaswant Singh vs Ralla Singh And Ors. on 7 May, 2005
Equivalent citations: (2005)140PLR681
JUDGMENT M.M. Kumar, J.
1. The instant petition has been filed by the objector-petitioner by invoking Article 227 of the Constitution with a prayer to set aside order dated 5.3.2005 (Annexure P-1) passed by the executing Court dismissing his objections which were preferred under Order XXI Rule 97 of the Code of Civil Procedure, 1908 (for brevity, 'the Code'). It is appropriate to mention that the decree-holder-respondents (for brevity, 'DH-respondents') filed a civil suit in 1976 which was decreed on 23.8.1980. The judgment and decree has been upheld by this Court. It is also not disputed that the objector-petitioner made an attempt to become party to the aforementioned proceedings but the application was dismissed by this Court. However, at the stage of execution, the objector-petitioner again filed objections under Order XXI Rule 97 read with Section 151 of the Code. It has been claimed by the objector-petitioner that he came in possession of land of Khasra No. 61 which is subject matter of judgment and decree dated 23.8.1980, 10-12 years before the filing of objections. The objections were filed on 4.3.2003 which shows that objector-petitioner came in possession of land of Khasra No. 61 somewhere in 1991. The executing Court noticed the argument of the DH-respondents to the effect that the objector-petitioner was not permitted to become party under Order XXI Rule 10 of the Code in para 13 of the impugned order and the same reads as under:-
"...The learned counsel for the decree holder has put my attention to the appeal filed by the JDs in R.S.A. No. 718 of 1981 in which the objectors Jaswant Singh and Darbara Singh have filed application under Order 22 Rule 10 C.P.C. before the Hon'ble High Court of Punjab and Haryana at Chandigarh for impleading as parties to the alleged transferee of the suit land in the said R.S. A. No. 718 of 1981 which was dismissed by the Hon'ble High Court of Punjab and Haryana Chandigarh on 23.8.1990 with the observations that suit was for possession of agricultural 1 and measuring 9 Biswas, comprising in Khewat Khatoni No. 77/137 and 1 38, Khasra Nos. 61 min (2-5) 61 min (2-4) and photo copy of the sale deed, now shown does not indicate that the suit land was sold to the applicants i.e. objectors and the applicants are not required to be impleaded as parties in the said appeal. Accordingly, the said application was dismissed."
2. It was further held that according to photo copy of the sale deed dated 15.6.1990 produced on record, it has not been shown that land in Khasra No. 61 was sold to the objector-petitioner or that they where in possession. In any case, if the land has been purchased during the pendency of the suit filed in 1976, then the principle of lis pendens was applicable as has been held by the Supreme Court in the case of Savinder Singh v. Dalip Singh and Ors., .
3. Mr. Anupam Singla, learned counsel for the objector-petitioner has argued that the principle of lis pendens as envisaged by Section 52 of the Transfer of Property Act, 1882 would not be attracted to the facts of the present case because the land in Khasra No. 61 which is subject matter of decree has not been found mentioned in the sale deed dated 16.5.1990. Learned counsel has further argued that the nature of possession of the objector-petitioner has to be determined after recording of evidence as all objections filed under Order XXI Rule 97 of the Code are required to be treated as a regular Suit as per Order XXI Rule 101 of the Code. In support his submission, learned counsel has placed reliance on a judgment of this Court in the case of Jagroop Singh v. Boria Khan, 2002 (4) R.C.R. (Civil) 336.
4. Mr. Amarjit Markan, learned counsel for the DH-respondents has submitted that there is no general rule of law that in all objections raised by an objector or the judgment-debtor, adjudication like a suit is mandatory. Learned counsel has pointed out that under Order XXI Rule 102 of the Code, a transferee pendente lite of the judgment-debtor has not been held entitled to a detailed adjudication. In support of his submission, learned counsel has placed reliance on a judgment of the Supreme Court in the case of Silverline Forum Pvt. Ltd. v. Rajiv Trust and Anr., .
5. After hearing learned counsel for the parties at a considerable length and perusing the impugned order, I am of the considered view that there is no merit in this petition. The objector-petitioner had asserted in the objections filed on 4.3.2003 that they were in possession of land measuring 4 Bighas 9 Biswas out of Khasra No. 61 for the last 10-12 years in their capacity as owner in possession. He is alleged to have purchased the land being bona fide purchaser from the legal heirs of decree-holder Mangal Singh and others i.e. Smt. Akki. Gurdev Singh, Gurpal Singh, Gurcharan Singh, Gurmukh Singh and others vide registered sale deed dated 16.5.1990. It is, thus, clear that the land comprised in Khasra No. 61 was claimed by the objector-petitioner as part of the sale deed. Firstly, if any sale deed was executed during the pendency of the Civil Suit which was filed in 1976, then it is covered by the principle of lis pendens and no detailed adjudication is required as per the provisions of Order XXI Rule 102 of the Code. A plain reading of Order XXI Rule 102 read with Rules 97 and 98 of the Code brings out the aforementioned legal position. This question came up for consideration before the Supreme Court in the case of Silverline Forum's case (supra) and it was held as under:-
"...No doubt if the resistance was made by a transferee pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative regarding that point the executing Court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act."
6. If the suit land is not part of the sale deed dated 16.5.1990, then it is not explained as to whether the objector-petitioner is in possession and if so how he acquired the possession. It is pertinent to mention that an application was filed by the objector-petitioner before this Court during the pendency of Regular Second Appeal No. 718 of 1981, decided on 7.12.12001 and by placing reliance on two separate sale deeds dated 16.5.1990 allegedly executed by the legal heirs of Mangal Singh. The aforesaid Civil Misc. No. 2351-C of 1990 in R.S.A. No. 718 of 1981 was dismissed on 23.8.1990 by observing as under:-
"This is an application under O.22 R.10 of the C ode of Civil Procedure for impleading as parties the alleged transferees of the suit land.
As per record, the suit was for possession of agricultural land measuring 9 Biswas, comprising in Khewat Khata No. 77/137 and 138, Khasra Nos. 61 min/2-5 and 61-min/2-4. Photo-copy of the sale deed, now shown, does not indicate that the suit land was sold to the applicants. That being the position, the applicants are not required to be impleaded as parties in this appeal. C.M. No. 2351-C of 1990 is dismissed."
7. It is, thus, evident that neither before the executing Court nor before this Court, the objector-petitioner was able to establish purchase of any share in land in Khasra No. 61. He did not produce original copy of the sale deed but has placed reliance only on the photocopies. Therefore, the findings has to be recorded by the executing Court that they have not acquired any share by virtue of the sale deed in land of Khasra No. 61 which inter alia, is subject matter of judgment and decree under execution. There is nothing on the record to show that the objector-petitioner has acquired the possession and in what capacity he is asserting his possession. Therefore, it has to be concluded that no serious adjudication is required to be undertaken for determining the objections and the same have been rightly disposed of by the executing Court by adopting the summary procedure. Such a course is not impermissible by law as has been held by their Lordship of the Supreme Court in Silverline Forum's case (supra). The relevant observations in this regard read as under:-
"It is clear that executing Court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21, Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary."
8. For the reason stated above, this petition fails and the same is dismissed.