Delhi District Court
Sh. Krishan Swroop Dh/ vs Unknown on 12 March, 2010
IN THE COURT OF SHRI BRIJESH KUMAR GARG
ADDL.DISTRICT JUDGE, CENTRAL18 , DELHI
EXECUTION NO: 223/09
SH.DHARAM SINGH ETC OBJECTORS
SH. KRISHAN SWROOP DH/APPLICANT
12.3.2010
O R D E R
This order shall dispose of the objections under Section 47 read with Order 21 Rule 10 and 12 read with Section 151 CPC of objector/plaintiff Dharam Singh as well as the application under Order 21 Rule 97 read with Section 47 and 151 CPC on behalf of the applicant/ objector Smt. Promila Devi.
2 It has been stated by the objector Dharam Singh that the possession of the suit premises was taken by him from the petitioner/applicant Krishan Swroop , in compliance of the order dated 21.2.2004, during the execution of the ex parte decree against him and the objector has already transferred/sold the suit premises bearing No. C159 , Khasra No. 269, Village Gokulpur, Delhi on 1.3.2004 to Smt. Pushpa Devi , wife of Sh. Rattan Singh Contd.2 2 and the possession of the suit premises has already been delivered to said Smt. Pushpa Devi on 1.3.2004 .
3 It has been stated by the objector Smt. Promila Devi in her application that the suit premises was purchased by her from Smt. Pushpa Devi vide registered sale deed dated 3.5.2005 for a total sale consideration of Rs. 7,00,000/ and the applicant Smt. Promila Devi is the bonafide purchaser and was having no knowledge of the litigation between the parties and, therefore, her right as a bonfide purchaser may be protected by the Court and, therefore, the order dated 10.12.2007 be set aside and the present application/petition be dismissed.
4 Reply to all these objections and the applications have been filed by the petitioner Kishan Swroop , wherein, it has been stated that these objections have been filed only to delay the execution proceedings and to deny the applicant the enjoyment of the fruits of the suit property.
5 It is further stated that objector had not disclosed the name of any person to whom the suit property was sold by him, during the consideration of the application under Section 144 Contd.3 3 of the CPC and, even if it is presumed that the suit property has been sold by him on 1.3.2004 , the same could not have been done by him as there was already a stay order regarding execution of the ex parte decree and the said orders were passed on 21.2.2004. It is further stated that the objector Smt. Promila Devi has purchased the suit property on 1.3.2004 during the pendency of the said poceedings and, therefore, her objections are hit by the Doctrine of 'lispendens'.
6 Sh. Dinesh Garg, Advocate for the petitioner/applicant Kishan Swroop has addressed the arguments on both these objections and Sh. Sandeep Jindal , Advocate has addressed the arguments on behalf of the objector Smt. Promila Devi and respondent Dharam Singh .
7 The main contention of the counsel for the objector Smt. Promila Devi and Dharam Singh has remained that the objector Dharam Singh had already sold the suit premises to Smt. Pushpa Devi on 1.3.2004 and he had already delivered the possession of the suit premises to Smt. Pushpa Devi on 1.3.2004 itself and Smt. Pushpa Devi had further transferred the suit property vide sale deed 3.5.2005, in favour of Smt. Promila Devi , present occupier Contd.4 4 of the suit premises and, therefore, the objector Dharam Singh is not in a position to deliver the possession of the suit premises to the applicant . It is also argued by him that second purchaser Smt. Promila Devi is a bonafide purchaser and was not a party to the dispute between the parties and no orders were passed against her and, therefore, the order dated 10.12.2007 cannot be executed against her .
8 Ld. Counsel for the applicant /petitioner has argued that the order dated 10.12.2007 has become final and a review petition was preferred against the said order but the same was also dismissed on 31.3.2008. He has also argued that the objections are barred by the Doctrine of 'lispendens' and even otherwise, the suit property could not be transferred by objector Dharam Singh to Smt. Pushpa Devi, as the executing court had already passed the order for stay of execution of ex parte decree and , therefore , Dharam Singh was not competent to transfer the suit property in favour of Smt. Pushpa Devi, in violation of the stay order. 9 I have carefully gone through the case file and I have given my considered thoughts to the arguments addressed by the Ld. counsels for the parties.
Contd.5 5 10 Perusal of the case file shows that the objector Dharam Singh had originally filed the suit against the present applicant , for possession, which was registered as suit No.33/96/91 and the defendant Kishan Swroop , the applicant herein was proceeded ex parte on 29.9.2003 and subsequently an ex parte decree was passed against him, and during the execution of the said decree the present applicant moved an application before the executing court on 2l.2.2004 and the executing court stayed the execution of the ex parte decree on 21.2.2004 itself, but the objector Dharam Singh , / DH/plaintiff of the original suit , took possession of the suit premises with the help of the bailiff of the Court, in the execution proceedings on 21.2.2004 itself. Perusal of the file further shows that the notice of the application of the applicant herein, in the execution petition, was served upon the objector Dharam Singh on 27.2.2004 but still the objector Dharam Singh has preferred to sell the suit premises to Smt. Pushpa Devi on 1.3.2004. Perusal of the record shows that Dharam Singh has sold the suit premises on 1.3.2004 , to Smt. Pushpla Devi after service of the notice of the application of the petitioner herein, in the execution petition, on 27.2.2004, with the sole motive of frustrating the application of Contd.6 6 the applicant herein.
11 It is observed that after stay of the execution proceeding by the executing court on 21.2.2004, Dharam Singh was not competent to sell the property to Smt. Pushpa Devi on 1.3.2004 and was not competent to hand over the vacant physical possession of the premises to her on the same day as the same has been done in violation of the order dated 21.2.2004. Furthermore, Smt. Pushpa Devi had further sold the suit premises to Smt. Promila Devi on 3.5.2005 in violation of the said orders .
12 Perusal of the case file further shows that all these averments have already been heard and considered by the Court of Shri Raj Kumar Chauhan , Ld. ADJ, Delhi while disposing of the application under Section 144 C.P.C. The order dated 10.12.2007 has attained the finality and there is no challenge pending against the said order. The relevant paras of the said order are being reproduced below as under:
I have considered the rival submissions made at Bar and gone through the case file carefully. I have also seen the execution file bearing no. 69/03 which is pending before the court of Shri Sunil Kr. Aggarwal, Ld. ADJ, Delhi. The plaintiff has instituted the present suit for possession, damages and mesne profits in respect of property as shown in red color in the site plan Contd.7 7 attached with the plaint against the defendant and the suit was decreed vide order dt. 29.09.03. The possession of the suit property as shown in the site plan Ex. PW1/4 was ordered to be given to the plaintiff. The plaintiff has filed the execution petition bearing no. 69/03 on 27.11.03. On 21.02.04 plaintiff was given possession of the suit property bearing no. C159, Khasra no. 269, Village Gokulpur, Delhi as shown in red color in the site plan Ex. PW1/. Warrants of possession after execution were returned by the bailiff. On 21.02.04 itself, an application for stay of execution was moved by the defendant through his counsel. Notice of the said application was issued to the Decree - holder for 27.02.04 and in the meantime operation of decree was stayed. As per report of the Ahlmad the said notice was issued on 24.02.04. The plaintiff in written arguments categorically stated that the stay order dt. 21.02.04 was not in the knowledge of the plaintiff or his counsel on 21.02.04 when the possession was handed over to the decree - holder by the bailiff. In the above circumstances the allegations in the application that possession was taken forcibly by the Decree Holder does not hold water.
It is admitted case of the plaintiff that he has taken the possession on 21.02.04 of the above mentioned suit property through bailiff under the execution of the decree vide order dated 5.5.07, the said exparte decree was setaside and plaintiff/decree holder was burdened with cost of Rs.5000/ for obtaining exparte decree by concealing material facts from the court. The Civil Miscellaneous main before the Hon'ble High Court of Delhi filed by the plaintiff has been dismissed vide order dt. 14.11.07. The plaintiff has not disclosed the name of the person to whom he has Contd.8 8 sold suit property after taking possession under the expartedecree.
The plaintiff has not placed on record any Sale Deed etc. with regard to sale of the suit property.
13 From the record and the order dated 10.12.2007 it is clear that the present objections have been filed by the objector Dharam Singh and objector Smt. Promila only to delay the present proceedings and to deny the applicant/petitioner Kishan Swroop, the enjoyment of fruits of his property and, therefore, these objections are hereby dismissed subject to imposition of cost of Rs.5000/ each, on both the objectors . Objections are disposed of accordingly.
ANNOUNCED IN OPEN COURT BRIJESH KUMAR GARG
12.03.2010 ADDL.DISTRICT JUDGE
CENTRAL18, DELHI
B
Contd.9
EX. NO: 223/09
12.3.2010
PRESENT: Petitioner/applicant Kishan Swroop in person.
None for the objector.
Separate orders on the objections of objector Dharam Singh and objector Smt. Promila Devi have been passed, whereby, both objections have been passed, whereby, both objections have been passed, subject to imposition of cost of Rs.5000/ each . Therefore, issue warrants of attachment of moveable assets of the objectors for the aforesaid costs and warrants of possession of the suit premises bearing No.C159, Khasra No. 269, Village Gokulpur, Delhi DH/petitioner to appear before Ld. ACJ on 9.4.2012 and to report before this Court on 7.5.2010.
BRIJESH KUMAR GARG ADDL.DISTRICT JUDGE CENTRAL18 , DELHI Contd.