Delhi High Court
Sh. Kuldip Singh vs Banarasi Dass on 4 September, 2015
Author: Jayant Nath
Bench: Jayant Nath
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 30.04.2015
Date of Decision: 04.09.2015
+ EX.P. 164/1990; EA 843/2012; EA 844/2012 and IA 274/2015
SH. KULDIP SINGH ..... Decree Holder
Through: Mr. P.S. Patwalia, Senior Advocate
Mr.Ashok Mahajan and
Ms.Kamlesh Mahajan, Advocates.
versus
BANARASI DASS ..... Judgement Debtor
Through: Mr. Ashwani Kumar Mata, Senior
Advocate with Mr.Raghav Kapoor,
Advocate for LR of JD No.2
(Ms. Dipti Bansal)
Mr.Prashant Bhushan and
Mr.Mukul Kumar, Advocates for
LR of JD No. 2
Ms. Geeta Luthra, Sr. Adv. with
Ms. Jomol Joy, Advocates for JD
No. 8
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.
1. By the present order I shall deal with three objections to the present Execution Petition i.e. EA No.843/2012 filed by Smt.Dipti Bansal LR of JD No.2, EA No.844/2012 filed by Smt.Vijaylaxmi JD No.8 and IA No.274/2015 filed by Shri Rajeev Gupta, LR of JD NO.2.
EX.P. 164/1990 Page 1 of 372. The brief facts of the case are that the Decreeholder Shri Kuldeep Singh entered into an Agreement to Sell dated 29/30.07.1980 with the LRs of the original owner of the property Shri Nand Lal. The LRs were Banarasi Das, Dhanpat Rai, Din Dayal, Gaindo Devi (widow of pre- deceased son Paras Ram). Each of these persons had 1/4th share in the suit property. Din Dayal had passed away leaving behind his Legal Heirs, namely, his widow Smt.Sushila Devi, three sons Mohinder Kumar Gupta, Surender Dayal , Narender Dayal and daughter Vijay Laxmi each of whom had 1/24th share in the suit property. As per the Agreement to Sell the total agreed sale consideration was Rs.14,00,000/-. A sum of Rs.1,40,000/- was paid as earnest money and as per the agreement possession of one garage in the suit property was handed over to the plaintiff. Balance Rs,12,60,000/-was to be paid on execution and registration of Sale Deed and delivery of possession.
3. Before any meaningful steps could be taken pursuant to the Agreement to Sell, one Shri Rajender Kumar claiming to be one of the sons of late Shri Din Dayal and a minor filed a suit through his maternal grandfather (being Suit No.1428/1981) seeking a declaration that the Agreement to Sell dated 29/30.7.1980 was illegal as he was not a party to it.
4. The decree holder thereafter filed the suit in issue i.e. Suit No.280/1982 on 10.01.1982, for specific performance of the Agreement to Sell against the said eight legal heirs and also impleading Rajender Kumar as defendant No.9 in the said suit. The suit was decreed ex parte on 30.4.1984. An appeal against the said ex parte judgment being RFA(OS)14/1985 was dismissed on 22.3.1985 as time barred. An EX.P. 164/1990 Page 2 of 37 application was also filed by the Judgment Debtors under Order 9 Rule 13 CPC for setting aside the ex parte decree. The application was dismissed on 15.7.1985. In these facts and circumstances the decree attained finality.
5. The Decree Holder filed the present Execution on 7.11.1990.
6. Objections were filed to the Execution by Mohender Kumar Gupta. Rajender Kumar also filed an application. Both these were dismissed vide judgment dated 1.2.2002 holding that the decree dated 30.4.1984 is executable. Mohinder Kumar Gupta filed FAO(OS) No.66/2002 against the aforesaid judgment. Rajender Kumar filed EFA(OS)4/2002 before the Division Bench. The Division Bench on 19.2.2010 dismissed the FAO filed by Mohender Kumar Gupta. However, the appeal filed by the minor Rajender Kumar was allowed holding that an execution against him cannot be persued as there is no decree against him. In the meantime, on 24.4.1999 some of the Judgment Debtors filed an application under section 28 of the Specific Relief Act, 1963 for rescission of the Agreement. This was dismissed by this Court on 23.2.2000. FAO(OS)110/2000 was filed before the Division Bench challenging the aforesaid order of this Court dated 23.02.2000. This FAO(OS)110/2000 was also dismissed by the Division Bench vide its judgment dated 19.2.2010 noted above. Review Petitions filed were also dismissed. The judgment which dismissed the appeal of Shri Mohender Kumar Gupta, allowed the appeal of Shri Rajender Kumar and dismissed the appeal regarding Section 28 of the Specific Relief Act came up as subject matter of the appeal before the Supreme Court in Civil Appeal No.1873 to and 1877/2014. The Supreme Court on 7.2.2014 dismissed the appeals filed EX.P. 164/1990 Page 3 of 37 by Shri Rajender Kumar and partly allowed the other appeals with the following directions.
―For doing complete justice to the parties, we are of the view that it is a case where the purchaser should be directed to pay the land value to the vendors as per the circle rate notified for the residential property in Category ‗A' colonies prevailing during November 16, 2011 to January 5, 2012, at the rate of Rs. 2,15,000/- per square meter. The purchaser shall also be liable to meet the liability arising by way of unearned increase to be paid to the Land and Development Office. He is free to withdraw the amounts deposited by him in the court as per order dated 06.01.2010. It is also ordered that in case the plaintiff does not deposit the amount to be paid to the vendors within three months from today, the vendors shall deposit in court within two months thereafter the amount calculated as per the circle rate referred to above by way of compensation to be paid to the purchaser, and in which event, they shall stand discharged of their obligations under the contract and the decree. In the event of the purchaser depositing the amount as above, the execution proceedings shall be finalized within another one month. The Court is seisin (sic) of the Suit OS No. 1428 of 1981 shall dispose of the same within three months from today.‖
7. Against the above order Review Petition was filed before the Supreme Court which was also dismissed on 29.4.2014.
8. Here it may also be necessary to mention certain other parallel proceedings. One of the LRs of Shri Dhanpat Rai who had died on 6.10.1993 i.e. Smt.Anupama Gupta and her three children, namely, Shri Rajeev Gupta, Sanjeev Gupta and Ms.Anjali Verma filed a suit in 2013 bearing CS(OS) No. 948/13 seeking a declaration that the decree dated 30.04.1984 which is the subject matter of Execution in the present suit is a nullity as it was obtained by concealment and fraud. It was averred in EX.P. 164/1990 Page 4 of 37 the plaint that as per policy of L&DO no person was allowed to be allotted any leasehold residential property if he or his spouse/dependent children own any residential house in Delhi/New Delhi/Cantonment. An affidavit was mandatorily required to be submitted. Shri Kuldeep Singh the Decree Holder herein is stated to have furnished an affidavit dated 22.9.1980 to the above effect. However, later it was discovered that Smt.Gurcharan Kaur the wife of Shri Kuldeep Singh on the date of the affidavit and till date continues to be the owner of property No.N-7, Green Park Extension, New Delhi. Pursuant to the judgment passed by the Supreme Court on 7.2.2014, the decree holder herein (defendant therein) filed an application under Order 7 Rule 11 CPC for rejection of the said plaint (Suit) stating that all the disputes between the parties have attained finality before the Supreme Court vide detailed judgment dated 7.2.2014 and that no cause of action now survives in favour of the plaintiff therein to continue the said suit No. 948/2013. This Court dismissed the suit on 17.07.2014 in view of the fact that the cause of action had disappeared in view of the decision of the Supreme Court and on the ground that continuation of the suit would amount to an abuse of the process of the Court. The Court also held that the claim of the plaintiff in the suit was barred by limitation. Against the said judgment dated 17.07.2014, dismissing the said suit, the plaintiffs therein filed an appeal RFA(OS) 152/2014 which was also dismissed by the Division Bench on 24.12.2014. The Division Bench noted that the judgment of the Supreme Court dated 7.2.2014, was passed to do complete justice and to bring about finality to the litigation between the parties and that the decree is executable for all purposes and intents except the share of Shri EX.P. 164/1990 Page 5 of 37 Rajender Kumar. The Court further held that the decision of the Supreme Court is binding on all the parties for all purposes who were before the Supreme Court. It was further held that the decision given by the Supreme Court is binding under Article 141 of the Constitution of India. If any matter or important issue has not been touched by the Supreme Court in its decision the remedy lies before the Supreme Court only and fresh adjudication cannot be sought from any other Court. The appeal was dismissed with costs of Rs.25,000/. Against the said judgment of Division Bench a SLP being 3000/2015 was filed. It was dismissed by the Supreme Court on 27.2.2015.
9. Despite the above position and the clear comprehensive directions by the Supreme Court on 7.2.2014 and also by the Division Bench on 24.12.2014 the present Objectors have persisted strongly pressing their objections.
OBJECTIONS IN EA 843/2012 (By Smt.Dipti Bansal)
10. I will first mention the details of the objections filed by Smt.Dipti Bansal, LR of JD No.2. Learned senior counsel appearing for the Objector had made the following submissions to support his contentions:-
(i) It is submitted that the objector Smt.Dipti Bansal is the daughter of late Shri Dhanpat Rai who died on 6.10.1993. Shri Dhanpat Rai never received any notice about the present Execution Petition. The Decreeholder on the death of Shri Dhanpat Rai filed EA No.163/1995 for substitution of LRs which was allowed. However, in the amended Memo of Parties that was filed by the DecreeHolder, Smt.Deepti Bansal was not mentioned as one of the LRs. Hence, at no stage in the present proceedings even till date, no notice of the present Execution EX.P. 164/1990 Page 6 of 37 Petition has been served on the Objectors which is in complete violation of Order 21 Rule 22 CPC. Hence, it is urged that the present execution proceedings have lapsed qua the present objector. Reliance is placed on Kanchamalai Pathar vs. Ry. Shahaji Rajah Sahib (deceased) and Ors.1936(70) MLJ 162 and Chiranji Lal Vs. Man Bhauti 1985 (28) DLT 353.
(ii) It is further urged that the property in question is not divisible as it is an L&DO property. Hence, everyone of the defendants/their LR's owns a part of the property. The decree is not severable and accordingly the decree cannot be executed. Reliance is placed on Mubarak Begam and Anr.vs. Sushil Kumar and Ors. AIR 1957 Rajasthan 154 and Ajit Prasad Jain vs. N.K. Widhani and Ors.AIR 1990 Delhi 42.
(iii) As per the plaint, it is urged that the garage in the suit property is already in possession of the Decree Holders. Hence, while the plaintiff seeks to execute the decree of specific performance of the Agreement, the decree does not envisage possession of the garage.
Hence, it is urged in these facts the Decreeholder is not entitled to possession of the garage of the suit property.
(iv) Reliance is placed on the judgment of the Supreme Court dated 7.2.2014 to contend that as per the directions given therein, the Decree Holder was obliged to deposit in Court the amount as stipulated by the Supreme Court i.e. the value of the property @ Rs.2,15,000/- per sq.meter, which is the notified circle rate in the relevant period plus unearned increase which will be payable to L&DO. It is urged that the said amount was to be deposited within EX.P. 164/1990 Page 7 of 37 three months from the date of the judgment of the Supreme Court and that the decreeholder has not deposited the amount which is payable to L&DO as unearned increase. Hence, the decreeholder has failed to comply with the directions of the Supreme Court dated 7.2.2014 and the decree in question has become unenforceable.
(v) It is further urged that Shri Rajender Kumar Gupta as per the judgment of the Supreme Court, has 1/24th share and against him no decree exists. It is stated that unless a partition of the property takes place by metes and bounds and the share of Rajender Gupta is segregated there cannot be a sale of the property as is sought. Sale of 23/24 of the share is not possible nor is it possible to give possession of this portion of the property inasmuch as each co-owner of the property is a joint owner of every inch of the property. The decree being structured in a particular manner has to be executed in that manner. It is further urged that in any case L&DO will not give permission for sale of part of the property and hence the decree is totally unexecutable.
OBJECTIONS IN EA No. 844/2012 (By Smt.Vijay Laxmi JD No.8)
11. I will now state the objections filed under Section 47 CPC by Smt.Vijay Laxmi, judgment debtor No.8. Learned Senior Counsel appearing for the Objector has elaborated her challenge to the present execution petition on the following submissions:-
(i) It is urged that unless L&DO grants permission for sale of the property to the decree holder, it may not be possible to execute the decree. It is urged that the judgment debtors have written a EX.P. 164/1990 Page 8 of 37 letter on 24.04.2014 to L&DO but so far the permission has not been received. In fact, L&DO is demanding additional documents.
(ii) It is further urged that Sh.Rajender Kumar Gupta is in physical possession of the suit property. The said Rajender Kumar Gupta is not bound by the decree in question which is sought to be executed. In these facts and circumstances, the decree holder can only hope to get notional/symbolic possession in view of Order 21 Rule 35(2) CPC read with Section 44 of the Transfer of Property Act. It is urged that in law, possession of one co-owner is the possession of all the co-owners. All the co-owners are owners of every single inch of land and accordingly in the absence of any partition of the suit property, the decree holder cannot get the possession of the suit property.
(iii) It is further urged that as per Order 21 Rule 22 CPC, notice has to go to all the legal representatives of the original judgment debtors. This has not been done and hence, the execution is liable to be dismissed on this ground against the objectors.
IA 274/2015 (Shri Rajiv Gupta LR of JD-2)
12. The next set of objections to the present execution petition has been filed by the LRs of Sh.S.K. Gupta. A perusal of IA No.274/2015 shows it is not framed as an objection. However, the learned counsel appearing for the Objector has submitted that the present objectors are willing to comply with the decree. However, it is urged that the permission in this regard would be necessary from L&DO. It is pointed out that an application for permission has been filed by the vendors to L&DO. However, no permission has been received so far as the L&DO EX.P. 164/1990 Page 9 of 37 has sought certain documents. Reference is made to a reply made by L&DO in this behalf.
SUBMISSION OF DECREEHOLDER
13. The learned senior counsel appearing for the decree holder has strenuously urged that the present objections are entirely misconceived and liable to be dismissed. He submits that in terms of the judgment of the Supreme Court dated 07.02.2014, the Supreme Court passed directions under Article 142 of the Constitution of India to bring an end to the entire controversy between the parties and the different litigations pending. He submits that the directions of the Supreme Court would be binding on the parties and the present objections are misplaced, misconceived and only an attempt by the objectors to prolong the proceedings and to delay the execution of the decree that was passed way back on 30.04.1984. It is further urged that the objections which are now being argued by the objectors are a repetition of the arguments and the submissions which have been made before various courts in different proceedings and also before the Supreme Court and that on the basis of all the submissions, arguments and contentions that have been made, at no stage the judgment debtors have received any favourable judgment. It is urged that the repetitive arguments and contentions are liable to be rejected forthwith by this court.
14. It is further urged that as far as the contentions of the Objector regarding Order 21 Rule 22 CPC is concerned, it is urged relying upon the judgment of the Supreme Court in the case of V.Uthirapathi vs. Ashrab Ali & Ors , 1998 (3) SCC 148 that even if for some reason any LR/judgment debtor is not impleaded as a party, the execution does not EX.P. 164/1990 Page 10 of 37 abate. The only infirmity is that the court may stipulate a time within which the decree holder may implead the LRs of the deceased judgment debtor and upon failure of the decree holder to do the needful, the execution can be dismissed. But even in such circumstances, the decree holder is free to file a fresh execution impleading the LRs of the deceased judgment debtor. Factually, even otherwise, he submits that all the LRs of the judgment debtors/judgment debtors were served either by the ordinary process or by publication. The Objectors here were also served. As far as Smt. Deepti Bansal is concerned, it is urged that she filed a recession application where she mentions about the pendency of the present execution petition. It is further urged that in a review application filed by Smt.Deepti Bansal, the same points were taken and were rejected. It is further submitted that the suit property is actually in possession of Sh.S.K.Gupta who is the main man and is instigating the entire litigation amongst the parties.
15. It is stated that the contention of the Objector that Sh.Rajender Kumar Gupta is in physical possession of the suit property is a completely bogus contention raised only for the purpose of raising desperate pleas. Reliance is placed on the following to contend that Sh. Rajender Kumar Gupta was never in possession of the suit property:-
(a) In the suit filed by Sh.Rajender Kumar Gupta he himself gives his address in the plaint as that of South Extension
(b) Reliance is also placed on the Local Commissioner's report dated 17.12.1990 filed in the present execution where the Local Commissioner found that the entire house is locked. The EX.P. 164/1990 Page 11 of 37 chowkidar had informed that the utensils lying inside the house belonged to Sh.Mahinder Gupta and Sh.Suresh Gupta.
(c) Reliance is also placed on a suit being CS(OS) 948/2013 filed by Smt.Anupama Gupta where all the legal heirs involved in the suit were impleaded as parties. Sh.Rajender Kumar Gupta was impleaded as a party and his address is given as that of South Extension.
(d) Reliance is also placed on the written statement filed by some of the parties in CS(OS) 948/2013 where again it is stated that Smt.Anupama Gupta and her predecessor late Sh.Suresh Kumar Gupta have alone enjoyed possession of the suit property.
Though they have acknowledged that the other defendants are co-owners.
(e) Reliance is placed on a judgment of the Division Bench of this High Court dated 19.02.2010 in FAO(OS) 66/2002 titled as Mohinder Kumar Gupta vs. Kuldeep Singh & Ors.
16. On the basis of the above, it is stated that it has been the constant stand of the parties that Sh. S.K. Gupta is in possession of the suit property. The contention of the Objectors now that Sh.Rajender Kumar Gupta is in physical possession of the suit property is a desperate afterthought only to buttress their arguments.
17. It is further submitted by the learned senior counsel for the decree holder that there have been changes in the policy of L& DO and now under the latest policy, the issue of owning other properties in Delhi has ceased to be of any consequence and the contentions of the objectors to EX.P. 164/1990 Page 12 of 37 the said effect are misplaced and misconceived. It is urged that this court may dismiss the frivolous objections filed by the objectors.
18. I have heard the learned counsel for the parties and gone through the records. I will deal with the submission of the Objectors.
FINDINGS
19. I may first see the effect of the Supreme Court Judgment dated 07.02.2014 passed in CA 1873-1877/2014. The Supreme Court vide its said judgment dated 07.02.2014 has passed clear directions as noted above. It would be useful to repeat the relevant directions which read as follows:
―For doing complete justice to the parties, we are of the view that it is a case where the purchaser should be directed to pay the land value to the vendors as per the circle rate notified for the residential property in Category ‗A' colonies prevailing during November 16, 2011 to January 5, 2012, at the rate of Rs. 2,15,000/- per square meter. The purchaser shall also be liable to meet the liability arising by way of unearned increase to be paid to the Land and Development Office. He is free to withdraw the amounts deposited by him in the court as per order dated 06.01.2010. It is also ordered that in case the plaintiff does not deposit the amount to be paid to the vendors within three months from today, the vendors shall deposit in court within two months thereafter the amount calculated as per the circle rate referred to above by way of compensation to be paid to the purchaser, and in which event, they shall stand discharged of their obligations under the contract and the decree. In the event of the purchaser depositing the amount as above, the execution proceedings shall be finalized within another one month. The Court is seisin of the Suit OS No. 1428 of 1981 shall dispose of the same within three months from today.‖ EX.P. 164/1990 Page 13 of 37
20. The Supreme Court also made various observations on the contentions being raised by some of the judgment debtors or Legal Heirs.
These observations would also bind the present Objectors who are raising numerous objections on executability of the decree. Relevant observations are as follows:-
"17. We do not think that the vendors would be justified in setting up any defence on executability of the decree both on law and facts of the case. At the risk of redundancy, on referring to the facts, it can be seen that the vendors had in fact wanted to fructify the agreement for sale. Having received the advance amount of Rs.1,40,000/-, they had parted possession of a part of the property, viz., garage. They had jointly made an application to the L&DO in terms of the agreement, for permission to transfer the property. The L&DO did grant the permission but on condition of deposit of an amount of Rs.7,17,330/- towards the unearned increase, which is more than 50% of the sale consideration. The value of the property had shot up by that time. It is pertinent to note that as per the original agreement, the unearned increase was to be paid by the vendors. On account of the escalation, it appears, their hearts started burning and they were extremely reluctant to part with the property. Their attempts thereafter have always been, one way or the other, to delay, if not deny, their obligation for conveyance of the property.
...
21.... Though the Judgment says that the suit is decreed as prayed for and though all the prayers have been incorporated in the decree, it is to be noted that the suit is one for specific performance of the agreement. The suit that has been decreed is the suit for specific performance of the agreement. Once the decree for specific performance attained finality, they cannot thereafter turn round and make weak and lame contentions regarding executability of the decree."
23.There is no case that the court does not have jurisdiction to pass the decree. Nor is there any case that the decree is a EX.P. 164/1990 Page 14 of 37 nullity on account of any jurisdictional error. Hence, the decree is executable for all intents and purposes but limited to the shares of the vendors. The claim of Rajinder Kumar would depend on the outcome of the pending suit."
21. As per the above noted directions, the decree holder has to pay @ Rs.2,15,000/- per square meter for the property and to deposit the said amount within three months from the date of the Supreme Court order. The needful has been done by the decree holder. The decree holder is also liable to pay the amount of unearned increase that may be demanded by L&DO for the purpose of grant of permission to sell the property. The court had directed that in the event of the decree holder depositing the amount, the execution proceedings shall be finalized within one month. Unfortunately, the same has not fructified.
22. The effect of the above judgment of the Supreme Court and the above noted directions came up for interpretation before the Division Bench of this High Court in RFA (OS) 152/2014 which was an appeal filed by Smt.Anupama Gupta against the dismissal of CS(OS) 948/13. The Division Bench noted as follows:-
―21. In the facts of the present case, there is no statutory provision which could prohibit the Supreme Court from passing a final order between the parties by declaring the said decree as an executable decree. We cannot lose sight of the fact that Article 142 itself envisages that the Supreme Court has been conferred with the power of passing a decree or to pass any such order as is necessary for doing complete justice between the parties in the exercise of its power under this article. Admittedly the appellants were before the Supreme Court where indeed the entire issue of the alleged fraud was raised by them. After having gone EX.P. 164/1990 Page 15 of 37 into all the issues, the Supreme Court passed the said order dated 07.02.2014 so as to do ―complete justice‖ between the parties. Had it not been so, the Supreme Court would not have taken into consideration the fact that it would be great injustice to the judgment-debtors if they are not paid the price prevailing during November 16, 2011 to January 5, 2012, as the purchaser failed deposit the balance sale consideration of the amount till the year 2010.
24. Therefore this court is of the view that the said decision of the Supreme Court, is binding on all the parties for all purposes, who were before the Supreme Court, and the said decision will not be affected by the fact that no express findings have been given on the particular contention raised by the appellants. Once any decision is given by the Supreme Court, it becomes binding under Article 141 of the Constitution of India. The remedy, if any, in a case where any matter or important issue has not been touched by the Supreme Court in its decision, lies before the Supreme Court only and fresh adjudication cannot be sought from any other court. The appellant herein had filed a review petition seeking review of the order dated 07.02.2014 but the said plea of fraud was not raised by them and now to raise the same in the said suit would be a sheer abuse of the process of the Court.‖
23. Against the above judgment of the Division Bench dated 24.12.2014, the said Smt.Anupama Gupta and her children had filed an SLP before the Supreme Court being SLP No. 3000/15 which was dismissed on 27.02.2015.
24. In view of the observations recorded by the Division Bench above and upheld by the Supreme Court, the said judgment of the Supreme Court dated 07.02.2014 would bind the Objectors. The directions passed by the Supreme Court are in exercise of powers under article 142 of the EX.P. 164/1990 Page 16 of 37 Constitution of India. Hence, the present objections are entirely misplaced, misconceived and have no grounds whatsoever and are liable to be dismissed forthwith as being barred by the said judgment of the Supreme Court. The present objections have to be construed as nothing else but an attempt to frustrate the decree passed in favour of the decree holder and an attempt to delay the proceedings. These executions have now been pending for 25 years.
25. However, for the purpose of completeness, I may go into the submissions raised by the respective objectors on merits.
26. I will first deal with the objections filed by Smt. Deepti Bansal being EA No.843/2012. The first submission is that no notice of the execution has been received by the Objector Deepti Bansal who is the daughter of Sh.Dhanpat Rai, one of the judgment debtors who had died on 06.10.1993. It was urged that even till date, the objector has not been served with the notice and that the mandatory provisions of Order 21 Rule 22 CPC have not been complied with.
27. Order 21 Rule 22 reads as follows -
22. Notice to show cause against execution in certain cases.- (1) Where an application for execution is made--
(a) more than two years after the date of the decree, or
(b) against the legal representative of a party to the decree or where an application is made for execution of a decree filed under the provisions of section 44A, or (C) against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent).
EX.P. 164/1990 Page 17 of 37the court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him:
Provided that no such notice shall be necessary in consequence of more than two years having elapsed between the date of the decree and the application for execution if the application is made within two years from the date of the last Order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment debtor, if upon a previous application for execution against the same person the court has ordered execution to issue against him. (2) Nothing in the foregoing sub-rule shall be deemed to preclude the court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the end of justice.
28. Reference may also be had to Section 50 CPC which reads as follows:-
"50. Legal representative:-
(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.
........‖
29. If a decree holder defaults in bringing on record the LR of a deceased Judgment Debtor, what would be the effect. In this context EX.P. 164/1990 Page 18 of 37 reference may be had to the judgment of the Hon'ble Supreme Court in the case of V.Uthirapathi vs. Ashrab Ali & Ors.(supra) which held as follows:-
―It is clear, therefore, that if after the filing of an execution petition in time, the decree holder dies and his legal representatives do not come on record - or the judgment debtor dies and his legal representatives are not brought on record, then there is no abatement of the execution petition. If there is no abatement, the position in the eye of law is that the execution petition remains pending on the file of the execution Court. If it remains pending and if no time limit is prescribed to bring the legal representatives on record in execution proceedings, it is open in case of death of the decree holder, for his legal representative to come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree holder's legal representatives. In case of death of the judgment debtor, the decree holder could file an application to bring the legal representatives of the judgment debtor on record, at any time. Of course, in case of death of judgment-debtor, the Court can fix a reasonable time for the said purpose and if the decree holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree holder's legal representatives, to file a fresh execution petition in case of death of the decree holder; OR, in case of death of the judgment debtor, the decree holder can file a fresh execution petition impleading the legal representatives of the judgment debtor; such a fresh execution petition, if filed, is, in law, only a continuation of the pending execution petition - the one which was filed in time by the decree holder initially. This is the position under the CPC.‖ EX.P. 164/1990 Page 19 of 37
30. Hence, the only effect of a legal representative of a deceased Judgment Debtor not coming on record is that the execution may be dismissed after fixing a reasonable time by the court but in that eventuality, the decree holder can file a fresh execution petition against the legal representative. It would be treated as continuation of the present execution petition.
31. Reliance of the objector on Kanchamalai Pathar vs. Ry. Shahaji Rajah Sahib (deceased) and Ors. (supra) is misplaced. The relevant paragraphs of the judgment of the full bench read as follows :
―9. But the question on which judicial opinion in this Country has been so acutely divided is whether the application under Section 50 and the notice under Order 21, Rule 22 are the foundation of the Court's jurisdiction, so that a sale in execution without these formalities will be void; or whether absence of these formalities amounts to nothing worse than an irregularity which may or may not serve to avoid the sale. But it seems to me that since the Privy Council ruling in Raghunath Das v. Sundar Das Khetri MANU/PR/0012/1914 the subject is no longer open to controversy.
10... where there has been no application under Section-50, and consequently no issue of notice under Order 21, Rule 22(1) foundation of the Court's jurisdiction to execute a decree against the legal representative are entirely wanting.
And a sale held without this jurisdiction would be void.‖
32. This was a case in which the judgment debtor died a week before the sale. It was argued that at best it would amount to an irregularity and the sale ought not to be set aside. The Full Bench was however of the view that there is no application under Section 50 CPC and consequently upon failure to issue notice under Order 21 Rule 22 CPC to the LR of EX.P. 164/1990 Page 20 of 37 the judgment debtor the foundation of the court's jurisdiction to execute a decree is wanting and a sale held without its jurisdiction would be void. This case, relied upon by the Objector, has no connection with the present case. In the present case the execution has been pending. No coercive steps have been taken against the Judgment Debtor. No execution has taken place. The objector does not seek to declare any step taken by the Court to be recalled as being void.
33. Certain factual aspects may be noted. When the execution was filed on 07.11.1990, notice was issued to all the judgment debtors including judgment debtor No.2-Sh.Dhanpat Rai, the predecessor of the objector. It appears that at one stage, junior counsel for Mr.Swatantra Kumar, Advocate (as he then was) appeared and mistakenly marked her presence for JDs No. 1 to 8 including Sh.Dhanpat Rai. This mistake was later noted by the court. The actual service of JD No.2 is not stated anywhere. On 19.05.1995 notice was issued to the LRs of the deceased judgment debtor No.2. The LRs were duly served and the application EA 163/95 filed for impleadment was allowed on 27.11.1996. There has been no objection at any stage by any of the parties including the LRs of the deceased judgment debtor No.2-Sh.Dhanpat Rai that all the LRs have not been added as a party or that the list is incomplete.
34. It may also be noted that the intense litigation has been going on between the parties. It is difficult to believe that the objector was not aware about pendency of the present Execution. The objector has participated in the recession application filed Under Section 28 of the Specific Relief Act. At that stage, the execution petition was pending. Now in 2012 the objector has filed the present objections. Hence, at EX.P. 164/1990 Page 21 of 37 least now it can be deemed that the objector has been served with notice and has been heard on her objections in the execution proceedings. Reference in this context may be had to the judgment of the Bombay High Court in the case of Bandu Hari vs. Bhagya Laxman and Ors., AIR 1954Bom 114 where the Division Bench held as follows:-
―2. .... The Rangoon High Court has taken the same view in
-- 'Bimalanandhan v. United Refineries', AIR 1933 Ban 52 (G). In that case the judgment-debtor was fully aware of the steps that had been taken in connection with the sale, it was held that he could not subsequently challenge the sale, on the ground that no notice under Order 21, Rule 22, had been issued, in his judgment, Page C. J. observed (p. 54) :
"..It is to be borne in mind that Order 21, Rule 22, was enacted solely in aid of judgment- debtors and their legal representatives, and to prevent a 'snap' order being obtained for execution against a judgment-debtor or his estate. Now, when a statute or statutory rule is enacted granting a privilege to a particular person or class of persons, it may be, as in the case of the contractual incapacity of infant under the Infants Relief Act, 1874, that the statute or rule was enacted not merely for the benefit of the person or the class of persons to which it applies but upon grounds of public interest; and in such cases, no doubt, the parsons in whose favour the enactment works cannot be barred by their own conduct from invoking the aid of the statute or rule that has been passed in the interest of the public generally....
"In each case, however, regard must be had to the intention of the legislature in enacting the rule and in cases such as the present case, in EX.P. 164/1990 Page 22 of 37 which a rule has been enacted solely for the protection of judgment-debtors and their estates, and not upon grounds of public policy or in the interest of the public generally, in my opinion it is clear both upon principle and authority that a person in whose favour the rule operates may by his conduct debar himself from the right of insisting upon its enforcement."
In --'Anil Kumar v. Ahammed Ali' MANU/WB/0009/1939:
AIR1940Cal23 (H) it was held that where the judgment- debtor has put in appearance and repeatedly asked for adjournment of the sale, obviously with the knowledge of the sale, he cannot plead want of notice under Order 21, Rule 22, for setting aside the sale.
3. The principle underlying these cases, with which we agree, is that even though a notice under Order 21, Rule 22, Civil P. C., which has been enacted for the benefit and protection of judgment-debtors, has not been issued to a judgment-debtor, if he actually appears in execution proceedings and raises various objections, the object of giving him a notice under Rule 22, which is to afford him an opportunity to show cause against execution and to satisfy the decree before execution issues, has been achieved, that if he does not then object to the execution on account of the failure to issue such a notice, he must be deemed to have waived the notice and that he cannot subsequently be allowed to challenge the sale on the ground that such notice had not been issued.‖
35. Similarly in the case of Jaseentha Joseph vs. Louis Neeklause, Cheppallil St. Joseph House, Patathanam Ward and Ors., AIR 1997Ker 40 the Court held as follows:-
―7. In Mithalal v. Kapoorchand MANU/RH/0015/1959 :AIR 1959 Raj 47 it was held that Order 21, Rule 22 is not EX.P. 164/1990 Page 23 of 37 mandatory when they have been given notice under Order 21, Rule 66. When such a notice is given and they are already contesting the case, it will be needless formality and it need not be insisted upon. The Court observed as follows:
"Thus in Chandra Nath v. Nabadwip Chandra MANU/WB/0276/1930 : AIR 1931 Cal 476, Rankin C.J., observed that it was quite unnecessary to push the abstract logic of the case of MANU/PR/0059/1914 : AIR 1914 PC 129, to a ridiculous extreme, and that it seemed to him to be merely piling unreason upon technicality to hold that it was open to the judgment-debtors to object to the jurisdiction of the court because they had not got a formal notice to do something, namely, to dispute the execution of the decree when in point of fact they were busy disputing about it in all the courts for the best part of the last two years.
It was further stated that all that Order 21, Rule 22 required was that an opportunity should be given to the judgment-debtors against whom execution was taken out more than a year after the decree to show cause why execution should not proceed, and that where a notice under Order 21, Rule 66 having been given, the parties were disputing about the execution of the decree, the failure to give notice under Order 21, Rule 22 was not an illegality." Therefore, it is argued by the respondents that petitioner was a party to the execution petition and filed objection. Her objections were considered and therefore, the contention that no notice was given under Order 21, Rule 22 will not make the order of delivery void.
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10. Various object ions filed by them were considered by the Court and merely no notice under Order 21, Rule 22 the proceedings will not become invalid. The objections filed by the legal representatives were considered on merit by the EX.P. 164/1990 Page 24 of 37 Court. The present execution petition was filed on 16-2- 1994. In the execution petition, additional judgment-debtors 11 to 17 were impleaded as legal representatives of the deceased first judgment-debtor. Hence I am of the opinion that the order is not invalid merely because Order 21, Rule 22 notice was not issued, especially in view of Rule 22(2) and in view of the fact that the allotment of Plot 1 to the first respondent was not disputed by the predecessor of the revision petitioner.‖
36. In the present case the objectors have been appearing and a detailed hearing has been given to the objectors and her objections are being disposed of on merits. In view of the said facts and the legal position stated above the objector cannot now seek to obstruct the present execution on the ground of non-service of notice under Order 21 Rule 22 CPC. There is no merit in the said contention.
37. The second argument of the Objector Ms.Dipti Bansal was that the property is not divisible and everyone owns every part of the property.
Hence, it was urged that the decree cannot be executed. This argument has no merits or basis whatsoever.
38. A decree has been passed against the defendants way back in 1984. Even at that stage in the plaint there were eight defendants who were the LRs of late Sh.Nand Lal against whom a decree of specific performance was passed. Despite there being several legal heirs of Sh.Nand Lal, the court passed a decree for specific performance. This decree has been upheld by the Division Bench.
39. It may further be added that in Civil Appeal No.1873-1877/2014 the Supreme Court dismissed various SLPs filed and passed directions for doing complete justice to the parties which would culminate in EX.P. 164/1990 Page 25 of 37 finalizing the execution proceedings. The contention of the objector about the property being not divisible has been rejected by the Supreme Court.
40. Reference may be had to the judgments cited by the learned senior counsel for the Objector to support his contention. Both the judgments do not in any way support the case of the Objector. The case of Mubarak Begam vs. Sushil Kumar (Supra) was a case in which a decree for recovery was passed against the Judgment Debtor Shri Zahur Ahmed. The amount was to be released from sale of mortgaged property which consisted of a house. The Judgment Debtor died one night prior to the date on which the balance sale consideration was deposited by the auction purchaser. The Court noted that the judgment debtor had left two widows as heirs and a sister. The sister was not on record. The confirmation of sale which was done by the Court in the absence of all the heirs of the Judgment Debtor was held to be unjustified. This judgment does not in any manner help the case of the Objector.
41. The other case, namely, Ajit Prasad Jain vs. N.K. Widhani and Ors. (supra) pertains to a suit filed for a decree of specific performance of a property at Babar Road, Bengali Market, New Delhi. In that judgment this Court held that permission from L&DO office is not a condition precedent for grant of decree of specific performance. If after grant of a decree of specific performance, the L&DO refused to grant permission for sale, the Decree Holder may not be in a position to enforce the decree. But this is not a condition precedent for passing off a decree. This judgment also does not in any manner support the said contention of the Objector. The contention is without merit.
EX.P. 164/1990 Page 26 of 3742. The third contention of the Objector Ms.Dipti Bansal was that the garage as per the plaint is already with the decree holders. Accordingly, it is urged that the decree does not deal with the garage and no possession of the garage is envisaged in the decree. This objection has again no merit. It is not the case of the objectors that they have the possession of the garage and in terms of the decree, the possession of the garage in their possession cannot be handed over to the decree holder. This hyper technical argument and objection to enforce a decree passed in 1984 on such frivolous objections cannot be accepted. It cannot be ignored that this court has passed a decree of specific performance of the agreement to sell dated 29/30-07-1980 in respect of the entire suit property No.9, Sunder Nagar, New Delhi.
43. Where no specific prayer is made in the plaint and even if the decree is silent about the delivery of possession, the executing court is empowered and bound to grant such relief. Reference in this context may be had to the Section 28(3) & (4) of the Specific Relief Act which reads as follows:-
"28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of what has been decreed.
(1) & (2) .......
(3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in Sub-section (1), the Court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely:EX.P. 164/1990 Page 27 of 37
(a) the execution of a proper conveyance or lease by the vendor or lessor;
(b) the delivery of possession, or partition, and separate possession, of the property on the execution of such conveyance or lease.
(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case, may be.‖
44. The Supreme Court while interpreting the above Section in the case of Babu Lal vs. Hazari Lal Kishori Lal & Ors., AIR 1982 SC 818 held as follows:-
―14. .... In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simpliciter without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree against him completely he is bound not only to execute the sale-deed but also to put the property in possession of the decree holder.
xxx
28. Sub-section (3) of Section 28 clearly contemplates that if the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree, the Court may on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to. Sub-clause (b) of Sub-section (3) of Section 28 contemplates the delivery of possession or partition and separate possession of the property on the execution of such conveyance or lease. Sub-section (4) of Section 28 bars the filing of a separate suit for any relief which may be claimed under this section."
45. The Single Judge of this High Court while noting the above EX.P. 164/1990 Page 28 of 37 judgment of Babu Lal vs. Hazari Lal Kishori Lal & Ors.(supra) in the case of Ms.Adarsh Kaur Gill vs. Sh.Mawasi & Ors., 187(2012) DLT 41 held as follows:-
―28. After having considered the abovementioned judgments, it is very clear that the grant of relief for delivery of possession is just a formality and even though, no specific prayer is made in the plaint and even the decree is silent about the delivery of possession, the Executing Court is empowered and bound to grant such relief. If I go through the judgments referred above, it is not even necessary to amend the plaint, as it is the admitted position in the present case that the sale deed in terms of the decree has already been executed in favour of the decree-holder and there is no involvement of the third party regarding the possession. This fact has not been controverted by the judgment-debtors in the pleadings also as status-quo orders passed by this Court till the disposal of the appeal. Thus, it is clear that the possession was with the judgment-debtors. Therefore, the facts of the cases directly apply to the facts and circumstances of the present case. However, since the objection is raised by the judgment-debtors and the decree- holder has also sought amendment of the plaint for including the relief for possession of the property in question, coupled with the fact that a conflicting view has been taken by the Courts in some of the cases and the proviso to sub-section (2) of Section 22 of the Specific Relief Act, 1963 allows the plaintiff who has not claimed any such relief provided by Clauses (a) or (b) of sub-section (1) of Section 22 to amend the plaint for including a claim for recovery of possession.
The amendment, under these circumstances, can be allowed at any stage of proceedings including the execution proceedings.
29. Under these circumstances, the prayer made by the decree-holder for amendment of the plaint has to be granted, even though such amendment was not necessary. Ordered accordingly and consequent thereto, the decree is also amended.
EX.P. 164/1990 Page 29 of 3730. Under Order VII, Rule 7 of CPC, it is provided that it shall not be necessary to ask for general or other relief which may always be given as the court may think just to the same extent as if it had been asked for. It is settled law that relief to be provided by the court is to be based on the pleadings of the plaintiff.
31. This Court is of the considered view that the relief of possession is ancillary and it springs out and is comprised in the relief to that for the specific performance of the contract to sell.‖
46. Hence, merely because in the plaint which was filed, the decree holder had not sought possession of the garage, would not be of any help to the objector. In view of the decree for specific performance of the entire suit property (23/24th share), title and possession of the property would have to pass to the decree holder accordingly. There is no merit in the said contention.
47. The next argument of the said Objector was that the decree holder was obliged in terms of the judgment of the Supreme Court dated 07.02.2014 not only to deposit the full consideration amount payable to the judgment debtors at the rate stipulated by the Supreme Court, namely, Rs.2,15,000/- per square meter but also the unearned increase payable to L&DO. It is urged that the decree holder has only deposited the amount calculated at Rs.2,15,000/- per square meter but the unearned increase payable to L&DO has not been deposited. It is urged that deposit of this amount follows from the order of the Supreme Court and the decree cannot now be enforced/executed.
48. The above contention is without merit. The Objector on the one hand seeks to resile from the directions given in the judgment dated EX.P. 164/1990 Page 30 of 37 07.02.2014 and on the other hand, she seeks to enforce certain rights allegedly flowing from the said judgment. The Objector cannot approbate and re-approbate in this manner.
49. The Supreme Court in the judgment dated 07.02.2014 had directed the decree holder to deposit the sale consideration as stated in the judgment within three months from the date of the judgment. It also directed that the purchaser shall also be liable to meet the liability arising by way of unearned increase to be paid to the Land and Development Office. The direction to deposit within three months pertains only to the amount which is to be paid to the vendors. The directions does not pertain to the unearned increase which is payable to the Land and Development Office. The occasion to pay the said amount would necessarily arise at the time when the permission is granted by the Land and Development Office.
50. In fact the demand has not yet been quantified. It will be for the Land and Development Office to quantify the demand and only thereafter, the issue of the decree holder taking the steps regarding the demand of the Land and Development Office would arise. Any suo motu calculation if done by the decree holder would have no sanctity or basis whatsoever. The contention is completely devoid of merits.
51. Last submission is that Sh.Rajender Kumar Gupta who has 1/24 th share in the property is not bound by the decree. Hence, it is urged that each of the judgment debtors being joint owners, they have rights on each square inch of the property and hence, the execution cannot be affected.
52. This submission of the objector regarding Rajender Kumar Gupta is again misplaced. Before the Supreme Court when the judgment dated EX.P. 164/1990 Page 31 of 37 07.02.2014 was passed, Sh.Rajender Kumar Gupta was a party to the said judgment. For doing complete justice to the parties, the Supreme Court has passed specific directions directing the execution proceedings to be finalised within one month. The Division Bench in FAO(OS) 66/2002 which was filed by Mohinder Gupta, vide judgment dated 19.2.2010 held that the Judgment Debtor cannot fire the gun from the shoulder of Rajinder Kumar. His issues will be decided in his suit. Hence, the said contention is misplaced.
53. In view of the above, it is clear that there is no merit in the objections filed by Smt. Deepti Bansal. Accordingly, EA No.843/2012 is dismissed with costs.
54. I will now deal with EA No. 844/2012 which are objections filed by Smt. Vijay Laxmi, judgment debtor No.8 and objections filed by Rajeev Gupta, LR of judgment debtor No.2. The objections are substantially common and I will deal with them together.
55. As far as the first submission of the said objectors are concerned, the same is that unless L&DO grants permission for sale of the property to the decree holder, it may not be possible to execute the decree. It is urged that so far permission has not been received from L&DO.
56. The judgment of the Supreme Court dated 07.02.2014 stipulates that the decree holder is liable to meet the liability on unearned increase to be paid to the land and development office. The land and development office would normally communicate the unearned increase and accept the said payment only after granting appropriate permission. Once the payment is made, the formal permission would be granted. Then only a conveyance deed is liable to be executed in favour of the decree holder.
EX.P. 164/1990 Page 32 of 37This objection by the objectors is nothing but stating the obvious. This cannot be a ground to stall further proceedings.
57. The second objection which has been raised only by Smt.Vijaylaxmi pertains to the alleged physical possession of the suit property by Sh.Rajender Kumar Gupta. It is urged that Sh.Rajender Kumar Gupta who is in physical possession of the property is not bound by the decree in question and hence the decree holder can only hope to get symbolic possession. It is stated that all co-owners are owners of every single inch of land and accordingly, in the absence of any partition of the suit property, the decree holder cannot claim possession of the suit property.
58. In my opinion there is merit in the submissions of the learned senior counsel for the decree holder who has listed various reasons above to explain as to why Sh.Rajender Kumar Gupta cannot be said to be in possession of the suit property. Despite repetition, the reasons are again stated below.
(a) In the suit filed by Sh.Rajender Kumar Gupta he himself gives his address in the plaint as that of South Extension, New Delhi.
(b) Reliance is also placed on the Local Commissioner's report dated 17.12.1990 filed in the present execution where the Local Commissioner found that the entire house is locked. The chowkidar had informed that the utensils lying inside the house belonged to Sh.Mahinder Gupta and Sh.Suresh Gupta.
(c) Reliance is also placed on a suit being CS(OS) 948/2013 filed by Smt.Anupama Gupta where all the legal heirs involved in EX.P. 164/1990 Page 33 of 37 the suit were impleaded as parties. Sh.Rajender Kumar Gupta was impleaded as a party and his address is given as that of South Extension, New Delhi.
(d) Reliance is also placed on the written statement filed by some of the parties in CS(OS) 948/2013 where again it is stated that Smt.Anupama Gupta and her predecessor late Sh.Suresh Kumar Gupta have alone enjoyed possession of the suit property. Though they have acknowledged that the other defendants are co- owners.
(e) Reliance is placed on a judgment of the Division Bench of this High Court dated 19.02.2010 in FAO(OS) 66/2002 titled as Mohinder Kumar Gupta vs. Kuldeep Singh & Ors.
59. A perusal of the plaint referred to above which was filed by Sh.Rajender Kumar Gupta in the suit filed by Sh.Rajender Kumar Gupta, namely, Suit No.1428/1981 shows that it is clearly stated that Sh.Rajender Kumar Gupta is a resident of C-3, South Extension, Part-I, New Delhi. The suit is filed through his maternal grandfather who is said to be a resident of Kotla Mubarakpur, New Delhi. In the said suit, none of the family members are, as per the cause title, staying in the suit property. The address of defendants No.1 to 9 is different from the suit property. Hence, it is the own admission of Rajender Kumar Gupta that he is not in possession of the suit property in 1981.
60. This court had vide order dated 15.11.1990 in this petition appointed Ms.Seema Malik, Advocate as Local Commissioner to visit the suit property in question and to report as to who is in possession of EX.P. 164/1990 Page 34 of 37 the property. The court had also on that date restrained the judgment debtors from transferring possession of the property, alienating or otherwise dealing with the property in question till further orders. A perusal of the report of the Local Commissioner dated 17.12.1990 shows that the main gate of the property was locked. There were no signs of the property being occupied. Through the glass window, the Local Commissioner found the rooms vacant except one room on the ground floor in which some utensils were lying. As per the Chowkidar-Sh.Ravi, the said utensils belonged to Sh.Mahinder Gupta and Sh.Suresh Gupta.
61. There are no objections filed to this Report of the Local Commissioner. In the light of the above report of the Local Commissioner and the interim order passed by this court dated 15.11.1990, the conclusion is obvious. Sh.Rajender Kumar Gupta was never in physical possession of the suit property. If at any later stage he has entered into possession, it is in violation of the interim orders of this court and the possession would be deemed to be in contemptuous disregard of the order of this court. In any case, other than making a bald statement that Sh.Rajender Kumar Gupta is in physical possession, there is no attempt to demonstrate the possession of Sh.Rajender Kumar Gupta. The said objection has to be rejected as completely devoid of merits.
62. The last objection of Smt.Vijaylaxmi is regarding service of notice to the legal representatives. It is not her case that she was not served with the notice. The issue has already been dealt with by me above.
63. There is accordingly no merit in the objections of Smt. Vijaylaxmi being EA No.844/2012 and of Sh.Rajeev Gupta being IA No. 274/2015
64. All the objections filed are dismissed with costs.
EX.P. 164/1990 Page 35 of 3765. Other than these three objections, I am informed that there are no other pending objections. However, in any case none has appeared to press any other objections. The decree has to be executed.
66. Keeping in view the fact that there are large number of judgment debtors or their heirs, it is unlikely that they will act in unison to complete the formalities to have the decree executed. Hence, I appoint Sh. Subhash Mishra, Advocate (Mob.9810220186) as Local Commissioner to take all steps for and on behalf of the judgment debtors. The said Local Commissioner shall complete all necessary formalities on behalf of the Judgment Debtors/heirs for getting consent of the L&DO for sale of the property to the decree holder. The Local Commissioner shall execute and sign all documents papers, applications for and on behalf of the judgment debtors/heirs. The decree holder shall render all assistance to the Local Commissioner. On receipt of the communication from the L&DO regarding payment of the unearned increase, the decree holder shall forthwith make the necessary payment. Thereafter, the Local Commissioner would on behalf of the vendors execute and register the necessary sale/conveyance deed in favour of the decree holder for 23/24th share of the suit property. The share of Rajender Kumar is not being dealt with and he is free to take steps as per law to claim his share. The fee of the Local Commissioner for the time being is fixed at Rs.1,50,000/- plus out of pocket expenses to be paid by the decree holder. All expenses shall be borne by the decree holder. In case the work involved is voluminous, the Local Commissioner is free to apply to the court for enhancement of the fees.
EX.P. 164/1990 Page 36 of 3767. Warrants of possession are also issued in favour of the Decree Holder for the suit property, which warrants shall be executed simultaneously with execution/registration of the sale/conveyance deed.
68. The Judgment Debtors/heirs shall also render all necessary assistance.
69. To await the report of the Local Commissioner, list on 23.11.2015.
(JAYANT NATH) JUDGE SEPTEMBER 04, 2015 n/rb EX.P. 164/1990 Page 37 of 37