Delhi District Court
Ex - 189/19 Jasram Through Lrs vs . Uoi . Pg. 1 Of 25 on 26 February, 2022
IN THE COURT OF MS. SHELLY ARORA
ADDITIONAL DISTRICT JUDGE01, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
Ex - 189/ 2019
1. Sh. Jas Ram (Deceased )s/o of Harbans
Through legal heirs :
a. Smt. Dharamwati W/o late Sh. Jas Ram
b. Smt. Nirmala Devi D/o late Sh. Jas Ram
c. Smt. Dayawati D/o late Sh. Jas Ram
d. Smt. Maheshwati D/o late Sh. Jas Ram
e. Sh. Virender Singh S/o late Sh. Jas Ram
f. Sh. Devender Singh s/o late Sh. Jas Ram
g. Smt. Kavita Devi d/o late Sh. Jas Ram
2. Sh. Satya Prakash s/o late Mam Chand
3. Sh. Ravinder s/o late Mam Chand
4 Sh. Azad Singh s/o late Mam Chand
5. Sh. Raghbir Singh s/o late Mam Chand
6. Sh. Surinder Singh s/o late Mam Chand
7. Sh. Sachew Singh s/o late Mam Chand
All residents of village Jasola, New Delhi.
8. Sh. Mansa Ram
S/o Ami Chand,
R/o village Jasola, New Delhi ...Decree Holders
versus
1. Union of India
Through Land Acquisition Collector
D.C. office (South East)
Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 1 of 25
Saidullajab, M.B. Road,
Saket, New Delhi110017.
2. The Land Acquisition Collector
D.C. Office (South East)
Saidullajab, M.B. Road,
Saket, New Delhi11007. ...Judgment Debtors
Date of Institution : 10.10.2018
Date of Reserving order : 29.11.2021
Date of order : 26.02.2022
ORDER
1. Vide this order, Objection / arguments on the maintainability of the execution petition filed under Order XXI R 13 CPC r/w Order XXII R 10 CPC and Section 146 CPC and Section 151 CPC for the execution of the judgment and decree dated 18.10.2011 filed on behalf of UOI is being disposed of.
OBJECTIONS :
2. It is stated that DHs filed the execution petition no. 7/14 - 2262/16 before the Court of Sh. Inderjeet Singh, then ADJ, Saket, New Delhi on similar grounds on which the instant execution petition is filed and the earlier execution petition was dismissed on 20.09.2016 and hence the said execution petition is not maintainable in the eyes of law. The earlier execution petition was filed by 8 DHs through Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 2 of 25 assignees wherein the name of 8th DH is Sh. Mansa Ram. Notices was directed to be issued to DHs on filing of PF, however, PF was not filed, even for notice thus, execution petition was treated to be dismissed for want of prosecution. In the present execution petition, seven DHs alongwith newly added DHs in place of Mansa Ram have alleged that he has assigned his rights under the said award and besides this, there are newly added person posing themselves as DHs and hence the execution petition is not maintainable. It is further averred that Section 146 CPC is being requested to apply but there is a no plea of application u/S. 146 CPC. It is stated that the assignees cannot be decree holders because they have not applied for impleadment of their names in place of assignee. It is admitted case that the Assignment Deed of 14.02.2005 is prior to date of decision of 18.10.2011 and principally Order XXI Rule 16 CPC does not come into picture at all. The LRs of DH no.1 is Davinder Singh but he never appeared in the Reference Court through out in the proceeding but one application under Order XXII R 3 CPC was filed on 07.07.2006, signature appearing on the application and affidavit appearing on the Assignment Deed, prima facie do not tally each other. Hence the application under Order XXII R 16 CPC and Section 146 CPC r/W Sec. 151 CPC is not maintainable and contrary to the judgments of the Apex Court.
3. It is further averred that present application is the misuse of process of law as the transaction on the strength of which impleadment and substitution of applicants name has been sought in place of Mansa Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 3 of 25 Ram, have been forbidden by law and ratio to this effect has already been decided by the Hon'ble Apex Court and such transaction is not only illegal, but is null and void.
4. It is further averred that the Hon'ble Apex Court on the strength of judgment reported as (1991) 3 SCC 67 (1995) Supp 2 SCC 549 and (1986) 3 SCC 156 has observed that land owners are entitled to just and reasonable compensation as of right and the assignee cannot take advantage of their better financial position to make them immediately enrich by getting huge compensation, therefore this application under reply is being misuse of the process of law, is liable to be dismissed on its merit with exemplary costs. It is stated that no assignment of transfer could be made in view of the restriction contained in the Delhi land (Restriction on Transfer) Act 1972. The applicant Ravinder was neither party before the Reference Court nor the decree holder or JD before this Hon'ble Court and hence the applicant is stranger to the entire proceedings before this reference Court as also to the decree of the judgment.
5. It is submitted that the said assignment deed is also void under Section 23 of the Contract Act as it is opposed to public policy. It is also well settled law that the court cannot go beyond the decree and moreover the rights have been purchased from the decree holder, the right purchased by way of assignment for receipt of the enhanced compensation amount, can be obtained out of the land acquired, meaning thereby if the land had not been acquired and vested with the government, from where the owner of the land can give such Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 4 of 25 right of getting compensation. The act of transfer of right by way of assignment in the litigation purchased by the assignee from the assignor is against the public policy and hit by Section 23 to Section 25 of the Indian Contract Act.
Reply to the objections :
6. In reply on merits, it is submitted that execution petition earlier filed by the applicants was not the same as parties were not the same, further, the said application was dismissed as not being maintainable for want of prosecution and no issues were decided on the same, thus, provision of Section 11 of the CPC inclusive of explanations are not applicable qua the same. Thus, the objection under response is frivolous and does not merit any consideration and the application under execution deserves to be allowed and the amount be released to the applicants in due proportion.
7. It is further pleaded that it is evident that UOI has not considered the ratio and the precedents that they themselves have cited. In the present facts, as is evident from the cited judgments itself, there is no need of a suit to be filed by the assignees. It is further stressed when a person is assigned a right in any litigation, it is merely obligatory upon that person to file an application under Order XXII R 10 CPC and not mandatory. The rights of the assignee do not extinguish if the application is not filed. It is further averred that the contents of objections are devoid of any merit and as a matter of law, since the applicants are claiming a right through DHs and have not filed an application under Order XXII R 10 CPC thus, the inclusion Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 5 of 25 and invocation of Order XXI R 16 CPC and Section 146 of the CPC is correct and proper.
8. It is further averred that the inclusion of the name of Mr. Mansa Ram is done on the similar document as that of the other DHs, thus, the objection of the UOI is self contradictory, as per the objection of the UOI the admission of the other DH apart from Mansa Ram is admitted. It is further averred that the citations being supplied by the objector have no factual relevance to the facts of the present execution. In the present execution petition, the assignors/DH had assigned their rights to the assignees/applicants of the present execution application in 2004 and 2005, while the award was passed in 2011. Thus, the applicants have given money to a needy family in their time of need and the said money is now to be recovered as the enhanced compensation, in the present matter and there is no application of the precedents being cited by the objector.
9. It is further pointed that there is no illegality in the assignment deed and all provisions of the CPC and specifically Order XXI R 16 CPC have duly been followed by this Court, however none has appeared on behalf of DHs to contest the execution of the present application, hence the award must be executed in favour of the applicants in the appropriate ratio.
10. It is submitted that the objectors admit that the assignment deeds were executed much before the passing of the award. The assignment deed is sacrosanct, being registered, unchallenged and unobjected to by the executing parties. On the basis of the binding Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 6 of 25 precedents laid down by the Hon'ble Delhi High Court, the application must be allowed and thus, the objection under response is frivolous and does not merit any consideration and the application under execution deserves to be allowed and the amount be directed to be released to the applicants in due proportion.
ARGUMENTS :
11. Arguments were advanced by both the contesting counsels.
12. Counsel for objector / UOI has argued that the execution petition is not maintainable and ought to be dismissed in view of detailed objections submitted by him.
13. Counsel for assignees, on the other hand, has argued that the execution petition is well maintainable and the objections are frivolous and thus, ought to be dismissed.
14. Detailed written submissions were also filed by Ld. Counsel for assignees / DHs. It is stated therein that petitioners being LRs of late Sh. Jas Ram and Sh. Mansa Ram himself assigned their rights to receive compensation through Registered Assignment Deed respectively dated 14.02.2005 and 23.02.2004. He also contended that assignees had contested reference petition even though they did not file application under Order XXII Rule 10 CPC seeking substitution of their names in place of assignors. It is further stated that the previous execution petition was dismissed on the ground that the Assignment Deed dated 23.12.2004 was not placed on record.
However, as assignees later were able to trace out the Assignment Deed dated 23.12.2004, that the present execution petition has been Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 7 of 25 repreferred. Reliance has been placed upon the case of Sharda Dumman Vs. Md. Raj, AIR 2015 SC 3747 and D. Prasad Vs. Jai Prakash University, AIR 2015 SC 2552, to contend that rights of assignees continue to be protected and that it is not obligatory to seek substitution in terms of Order XXII Rule 10 CPC. It is further pleaded that claim under Order XXI Rule 16 CPC and Section 146 CPC are exclusive and do not extinguish right of bonafide successor in interest with only rider that notice of any such application preferred by transferees or assignees ought to be given to the transferors and JD. Support has been drawn in the cases of Raj Kumar Vs. Sardari Lal & Others (2) Scale 17 and Smt. Seila Bala Dassi Vs. S. Nirmala Bassi and 1 (1958) SCR 1287.
Findings
15. The present petition has been filed by 8 Decree Holders through their respective assignees. This petition has been filed under Order XXII R 15 CPC r/w Order XXII R 10 CPC and Sec. 146 CPC r/w Sec. 151 CPC seeking execution of the judgment and decree dated 18.10.2011. It is part of record that earlier also, execution petition was similarly filed by Decree Holders through their assignees which was dismissed vide order dated 20.09.2016, which, to the best understanding as per the material on record, was not challenged.
16. Order XXI R 15 CPC provides for the procedure for execution by joint Decree Holders which is a decree having been passed jointly Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 8 of 25 in favour of more than one person. Order XXII R 10 CPC provides for the procedure in case of assignment of any interest during the pendency of the suit, is sought to be continued by or against the person to or upon whom such interest has come or devolved. So it explains the procedure when the factum of assignment, as it took place during the pendency of a suit, to be continued by assignees of any interest during such pendency. It calls for the assignees stepping into the shoes of assigners upon due proof of such assignment during the pendency of the suit, for the purpose of taking the suit to its logical conclusion for the remaining part of pending suit. Section 146 of CPC explains about the proceedings to be undertaken by any person claiming himself to be representative of any other person approaching the Court for the enforcement of any right or liability which means that any legal proceeding may be undertaken by any person as representative claiming under another person except as otherwise provided by CPC or except by force of any law for the time being. This implies that assignees, claiming their rights by virtue of respective Assignment Deeds through Decree Holders who are also the Assignors have jointly filed the execution petition for enforcement of Judgment and Decree dated 18.10.2011 passed in favour of Decree Holders.
17. At this stage, it is important to note that Order XXII R 10 CPC deals with an exigency where devolution of interest took place during the pendency of the suit and the original party ceases to have interest in the subject matter of dispute during such pendency. It is Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 9 of 25 settled that suit irrespectively can be prosecuted by the original party despite having no interest in the subject matter and it is not obligatory for the person upon whom interest has devolved to get himself substituted although he will be bound by the outcome of such a suit unless he is able to show and prove that the original party did not rigourously prosecute or colluded with the adversary party resulting in adverse decision against the person upon whom interest has been devolved. It is noteworthy that this execution petition has not been filed under Order XXI R 16 CPC which was pressed for in the previously dismissed execution petition. Order XXI R 16 CPC dealt with an eventuality where application for execution is filed by transferee of the decree i.e. when the decree itself is transferred by assignment in writing or by operation of law.
18. In the present execution petition under consideration, filed by Decree Holders through their assignees, purported assignment of interest took place vide Registered Assignment Deed dated 14.02.2005 by Decree Holders no. 1 to 7 in favour of Smt. Natasha Bhati W/o Sh. Vijay Kumar Bhati and Smt. Sangeeta Malhotra D/o. Sh. K.L. Malhotra and Decree Holder no.8 Sh. Mansa Ram S/o. Sh. Ami Chand in favour of Sh. Vijay Kumar Bhati S/o. Late Sh. Kale Singh and Sh. Rohit Chechi S/o. Sh. Nirmal Singh vide Registered Assignment Deed dated 29.12.2004.
19. Reference under Section 18 of LA Act was received from LAC Office and registered as LAC 72/05 on 14.03.2005. This reference was filed originally in the LAC Office on 27.11.1986 vide Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 10 of 25 LAC No. 161/ LAC(ME). It is also noted that this Reference bears signature of 5 petitioners whereas reference bears the names of 8 petitioners. It is evident that the assignment, as claimed, were made prior to receipt of reference in the Reference Court while Reference was still pending with the office of LAC and not forwarded for decision of the Court.
20. During the pendency of the suit, at no stage, was it revealed by any of the petitioners or by their counsel that they have ceased to have interest in the subject matter of the suit. It is noted that during the pendency of Reference Petition since 14.03.05, till judgment on 18.10.2011, even once, any of the petitioners have not appeared before the Court. It is also observed that no evidence was recorded in this case and judgment was passed being a covered Award on the basis of another judgment relied upon qua similarly placed lands falling in the same village. An application under Order XXII R3 CPC was however filed on behalf of LRs of petitioner no.1 before the Reference Court and it was observed vide order dated 22.09.2016 by the Ld. Executing Court dismissing the previous execution petition that the signatures of Sh. Devender Singh as LR of Decree Holder no.1 Sh. Jasram do not tally with his purported signatures upon Assignment Deed dated 14.02.2005.
21. One of the basic objections raised on behalf of UOI is that any application under Order I Rule 10 CPC is not maintainable on account of settled position of law that jurisdiction of a Reference Court is only to determine the adequacy of amount of compensation Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 11 of 25 paid under the award made by Collector. It is not open to the parties to directly apply to the Reference Court for any impleadment and to seek enhancement under Section 18 of Land Acquisition Act as Reference Court derives its jurisdiction only on the basis of what was referred to it and cannot proceed to decide on answer of some question not referred to it. Thus, it is contended that assignees have approached the court with the execution petition without getting themselves substituted or impleaded by moving an application before LAC or even before the Reference Court.
22. It is an admitted case of assignees that any application claiming their impleadment or substitution was not made during the pendency of the Reference Petition even though it is claimed that Reference Petition was contested on behalf of assignees. On the face of it, it appears very strange that despite there being devolution of interest even prior to forwarding of reference before the court, no application was filed either on behalf of assignors or assignees to bring factum of execution of Assignment Deed on record and to get names of assignees substituted / impleaded. However, it is a settled proposition of law that nonfiling of an application under Order XXII Rule 10 CPC by any transferee or assignee seeking impleadment is not mandatory. Further, it cannot be stated to be impleadment of a third party not related with the subject matter of the suit rather it is substitution by virtue of assignees having acquired interest in subject matter by way of devolution and thus, transfer of a right to claim compensation has occurred without any Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 12 of 25 change in the absence of legal proceedings having been initiated on behalf of transferors / original petitioner while the transferee / assignee remains bound to abide by the existing position till he applies to the court to obtain leave to carry on all remaining legal proceedings till the stage of enjoying the fruits of decree passed in favour of transferee. It is also settled that suit or proceedings may be continued to be contested by original party although the assignees or transferees shall be bound by the outcome of the proceedings or by the decree. Support can be drawn from the case of Mahavir Goel and Anr. vs. UOI, CM(M), 98/2015 decided on 03.08.2015 wherein the Hon'ble delhi High Court observed that the assignment of rights of the claimants in a pending reference does not tantamount to assignment of mere right to sue. Decision of the Hon'ble Delhi High Court in the case of K.D. Sawhney & Ors. Vs. UOI & Ors. in FAO No.294/2014, decided on 15.10.2014 was also adverted to wherein it was observed as under :
"Upon hearing and on perusal of the impugned order, material on record and the decision cited, I find that trial court has gravely erred in relying upon Apex Court decision in Ram Prakash Agarwal and Anr. Vs. Gopi Krishan (Dead through LRs) and Ors JT 2013 (8) SC 329 which infact relates to setting aside of a decree by resort to Order 9 Rule 13 of CPC. The Apex Court in the aforesaid decision has declared that an application under Order 9 Rule 13 CPC Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 13 of 25 cannot be filed by a person who was not initially a party to the proceedings. It has also been held by the Apex Court in Ram Prakash Agarwal (Supra) that the person aggrieved may maintain an application before the Land Acquisition Collector for reference under Section 18 or 30 of the Land Acquisition Act, 1894 but cannot make an application for impleadment or apportionment before the Reference Court.
Infact, it has been clearly held by a Division Bench of this Court in RFA No.237/1993, Shri Chandan and Ors. Vs. Union of India, decided on 7 th November, 1997 (AnnexureP6) that substitution for the purpose of obtaining compensation or enhancement thereof, would not be barred under clause (e) of Section 6 of Transfer of Property Act. In the considered opinion of this Court, the ration of the aforesaid decision in Shri Chandan (Supra), squarely applies to the instant case."
23. It was further observed in the said matter that "The mere omission to invoke Order 22 Rule 10 CPC and instead invoking Order 1 Rule 10 CPC could not have resulted in dismissal of the application. It is well settled that mere mention of a wrong provision of law would not nonsuit the applicant, when the law, Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 14 of 25 provides for an appropriate remedy in another provision of law. The applicants were entitled to seek substitution since they are the subsequent transferres in respect of the rights in the pending reference of the original claimant Kartari Devi. Accordingly, the petition is allowed and the impugned order is set aside.
The petitioners are directed to be substituted as claimants before the reference court. Amended memo of parties be filed within two weeks
24. It was held by the Division Bench of the Hon'ble Delhi High Court in the case of Sh. Chandan Vs. UOI in RFA No.237/193 decided on 07.11.1997 that :
"Thus in case of an assignment, creation or devolution of any interest during the pendency of litigation the person upon whom such an interest has come or devolved can seek leave of the Court for substitution. Right to receive compensation accrued to the appellants when their lands were acquired under the provisions of the Land Acquisition act. On award being made, the compensation was received by them under protest and they sought reference for enhancement. Enhancement was allowed. For further enhancement the instant appeal has been preferred. During the pendency of appeal, the appellants ultimately admitted have, for valuable consideration transferred their rights in favour of the applicants to receive and recover the enhanced amount of compensation. Such a right, which is claimed is not at all Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 15 of 25 covered by clauses (a) and (e) of Section 6 of Transfer of Property Act.
Clause (a) of section 6 of the Transfer of Property Actprohibits transfer of the chance of an heirapparent succeeding to an estate, the chance of a relation obtaining a legacy on death of kinsman, or any other mere possibility and not possibilities coupled with an interest. Section 5 of the Act defines 'transfer of property', A transfer of property may take place not only in the present but also in the future. Some interest in the property are future. Right to receive compensation is statutory, which crystallized on acquisition of property. Right to claim enhancement in compensation is also statutory conferred. It is this right, which has been assigned. No doubt that enhancement in compensation is a mere possibility but that possibility is coupled with an interest to receive and realize the compensation. Clause (e) of section 6 of the Act refers to a mere right to sue, transfer of which is also prohibited. But what has been transferred is not a bare right to sue but right to receive and realize the enhanced compensation."
25. Further, the Hon'ble Supreme Court in the case of D. Prasad Singh Vs. Jai Prakash, 2001 (6) SCC 534, held that there is no limitation period prescribed for filing of an application under Order XXII Rule 10 CPC and thus transferees pendentelite can seek their impleadment under Order XXII Rule 10 CPC at any time in order to Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 16 of 25 protect their interest.
26. The Hon'ble Delhi High Court in the case Rishi Raj Vs. Harish Gulati & Ors in FAO No.416/2015, decided on 07.12.2015 also observed as under :
"The submission made that since at the relevant point in time only the application was lodged and therefore, in law no proceedings were pending before the concerned court, according to me, is a submission which is totally misconceived. The proceedings, in my view, will be pending as soon as they are lodged and shall continue in that state till they are disposed of. The submission of the learned counsel that since the execution of assignment deeds took place on 19.06.2014 and the reference was made to the concerned court only on 25.09.2014 (i.e. a date prior to the date of reference) and therefore, no proceedings were pending in law when the reference was taken up, is, in my view, an unsustainable contention. The reason for this is that the limitation for preferring such an application before the Collector is either 6 weeks from the date of the award if the person making it was present or represented before the Collector at the time when he made his award or in other cases, within 6 weeks of the receipt of notice under Section 12(2) or within 6 months from the date of the award, whichever Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 17 of 25 period expires in point of time. The institution of the application is thus clearly a trigger for reference proceedings."
27. In the aforesaid matter also, the Assignment Deeds in question were executed prior to forwarding of reference to the Reference Court. However, application seeking substitution was filed by assignees before the Reference Court during the ongoing proceedings which was challenged by the assignors primarily contending that Assignment Deed was in contravention of Sections 10 & 23 of Indian Contract Act, as also prohibited under Section 6 of Transfer of Property Act and as per Sections 3 & 4 of Delhi Land (Restrictions on Transfer) Act, 1972 and thus have no legal validity. These grounds as also raised in objections filed by UOI were categorically rejected in the aforesaid matter.
28. On the ground of discussion made above, it is evident that it was not obligatory on the part of assignees to seek substitution in place of assignors before passing of decree.
29. With respect to provisions of Order XXI Rule 16 CPC, although this particular execution petition has not been filed under that provision, however notice of execution petition was sent to assignees under this provision. It was categorically held in the case of Sadhna Gupta Vs. Shish Pal & Another, 2016 (7) AD (Del) 454, that :
"40... Rule 16 of Order 21 does not say that the transfer / assignment should be one made after the passing of the decree. The executing Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 18 of 25 court would, however, put the transferor / assignor to notice in relation to his claim, if any, and proceed with the execution only after considering the objections that may raised, if any. If Order 21 Rule 16 were to be construed narrowly to cover cases of transfer of the decree after the decree has been passed, and not to cover cases where the transfer /assignment by a party to the proceedings of his rights in the subject matter of dispute takes place prior to the passing of the decree, it would lead to a contradictory situation. This is because such a transferee /assignee may continue the proceedings in the name of the original plaintiff / defendant as the case may be but he would not be able to avail the fruit/benefit of the decree ultimately passed. This would be contrary to the interpretation of Order 22 Rule 10 CPC taken note of hereinabove.
30. Provision of Section 146 CPC has been invoked in this execution petition which provides that any legal proceedings may be taken up by or against any person "claiming" under another person. Thus, it protects the right of persons who are interested in the subject matter by way of devolution or assignment. It is settled that provision under Section 146 CPC is a beneficial provision and should be construed liberally. Further that an explanation has been added under Order XXI Rule 16 CPC in the year 1976 which clarifies that it does not affect provision of Section 146 CPC. It is also settled that even if an application would not be filed directly under the provision of Order XXII Rule 10 CPC, it would still be maintainable under Section 146 CPC. Therefore, it is settled that any person claiming under the original petitioners can file or can Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 19 of 25 continue with execution petition with respect to decree obtained in favour or petitioners / assignors.
31. The above discussion answers the basic legal objections raised by UOI against this execution petition filed by assignees on the basis of Assignment Deed executed by assignors in favour of assignees even thorough decree was passed in favour of assignors.
32. Order XXI Rule 58 CPC contemplates a situation where execution of decree holder may be objected by assignee of interest in the subject matter of decree. No such objection has been filed in this matter.
33. However, there are certain factual aberrations which need to be underlined. Notice of execution petition in case of Order XXI Rule 16 CPC was issued to assignees which was noted to be served. There are two Assignment Deeds in question. It is stated that petitioner no.1 through his legal heirs and petitioners no.2 to 7 have assigned their rights in favour of assignees by way of execution of registered Assignment Deed dated 14.02.2005 and petitioner no.8 separately executed a registered Assignment Deed dated 23.12.2004. In the previous execution petition which was dismissed vide order dated 20.09.2016, Assignment Deed dated 14.02.2005 was placed on record whereas Assignment Deed dated 23.12.2005 was not placed on record. It is noted that none of these Assignment Deeds were placed on record during the pendency of the Reference petition even though it is claimed as part of this execution petition that reference petition was contested on behalf of assignees.
Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 20 of 25
34. It is noteworthy that application under Order XXII Rule 4 CPC was earlier moved in the main reference petition on behalf of sons of the deceased petitioner no.1, Sh. Jas Ram. Names of sons were mentioned therein as Sh. Virender Singh and Sh. Devender Singh. It is noted that this application was signed only by Sh. Devender Singh and not by Sh. Virender Singh. It is claimed in that application that entire interest stands relinquished by their mother and their sisters in their favour. However, any Relinquishment Deed was not filed on record and even the date of Relinquishment Deed was not mentioned as part of the application. Taking note of the same, all the legal heirs were directed to be substituted vide order dated 14.03.2007 passed by the Reference Court, even though, none of these appeared before the court during hearing of the application or during disposal of that application as reflected from the order sheets. Only counsel on behalf of petitioners was present who prosecuted the entire reference proceedings. It was noted as part of that order that wife of petitioner no.1 or sisters of petitioner no.1 have not been produced for recording of their statements that they have relinquished their rights or interest in compensation in favour of their brothers, Sh. Virender Singh and Sh. Devender Singh and thus all legal heirs and not just sons were directed to be impleaded. Amended Memo of Parties was filed wherein names of all the petitioners were mentioned including wife and all the four daughters of petitioner no.1, late Sh. Jas Ram. It is interesting to note that Assignment Deed was executed only on behalf of sons of Sh. Jas Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 21 of 25 Ram namely Sh. Virender Singh and Sh. Devender Singh and not by wife or daughters of Sh. Jas Ram who are the other petitioners in the reference petition. At the time of pronouncement of award, Sh. Jas Ram was alive and compensation was awarded to him along with other copetitioners and thus, none of the legal heirs was on record at that point of time and came to be substituted only on 14.03.2007. Infact it was directed in the order dated 14.03.2007 passed by the Ld. Reference Court that legal heirs of Sh. Jas Ram shall not be entitled to interest from 14.03.2005 till date of filing of application under Order XXII Rules 1 & 3 CPC on 07.07.2006 since sufficient cause for delay in filing of application was not shown. It is noted that in the Assignment Deed registered on 14.02.2005, there is absolute no mention of any relinquishment of shares by wife or daughters of Sh. Jas Ram in favour of Sh. Virender Singh and Sh. Devender Singh who proceeded to execute the Assignment Deed along with other co petitioners and on behalf of other legal heirs of deceased petitioner no.1. It is also not mentioned anywhere in the execution petition presently filed under consideration. It is also stressed that even though counsel for assignees also claimed that assignees contested the reference petition, application under Order XXII Rules 1 & 3, CPC, however, was moved by same counsel who represented assignors / petitioners in the reference petition and subsequently also represented the assignees in the first execution petition which was eventually dismissed.
35. An observation was made by the Ld. Executing Court while Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 22 of 25 dismissing the previous execution petition vide order dated 22.09.2016 that signatures of Sh. Devender Singh, legal heir of DH No.1, Sh. Jas Ram on application under Order XXII Rule 3 CPC do not tally with his purported signatures upon the Assignment Deed dated 14.02.2005. Similar observation can be prima facie made with respect to signatures of Sh. Mansa Ram as appearing on the Assignment Deed dated 29.12.2004 and as appearing on the main reference petition. It is again reiterated as an observation that signatures of Sh. Devender Singh as appearing on the Assignment Deed do not prima facie tally with the signatures on the application under Order XXII Rules 1 & 3 CPC.
36. It is noted that photocopy of Relinquishment Deed was filed along with no objection / reply dated 06.01.2016 filed in the previous execution petition. However, it does not hold ground as all the legal heirs of late Sh. Jasram were ordered to be impleaded. At no point of time, were wife and daughters produced before the court during reference or even during execution to prove the Relinquishment Deed in question and that they voluntarily intended to so assign their shares in favour of sons and brother.
37. Notice of execution petition was ordered to be issued in the previous execution petition to the assignors for which PF was not filed. It is also noted that notice of this execution petition having been filed on behalf of assignees was ordered to be sent to the assignors. It was observed in the order dated 18.09.2019 by Ld. Predecessor of Court that notices issues to assignors were duly Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 23 of 25 served. However, any of the assignors till date has not preferred any objection against the Assignment Deed. It is noted that only one person has accepted notice on behalf of the assignors claiming himself to be directly or indirectly related to assignees no.1 to 7. It thus cannot be concluded that wife and daughter of deceased decree holder no.1 were even aware of the execution petition having been preferred by assignees. Thus, noting that there is no Relinquishment Deed filed and accepted on record as per which the shares of wife and four daughters were relinquished in favour of their two brothers and therefore, they could not have assigned their rights in favour of assignors by virtue of any Assignment Deed. Thus, even though it is held that assignees could prefer execution petition within their right under Section 146 CPC, however, on account of factual inconsistencies and aberrations, the compensation cannot be ordered to be released in favour of assignees as it cannot be deduced that all the assignors have duly assigned their rights in favour of assignees since the Assignment Deed has not been executed by all of them.
38. It is noted that if the rights are already relinquished, there was no occasion for filing the execution mentioning the name of the wife and daughters. Further, there is absolutely nothing mentioned in the body of execution petition about relinquishment of shares. It is rather claimed that all the decree holders assigned their rights in favour of assignees which is factually incorrect.
39. It is also noted that reply dated 06.01.2016 filed by Sh. Vijay Kumar Bhati in previous execution petition carried reference about Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 24 of 25 Relinquishment Deed and was also supported with a photocopy thereof, however, as reply in the capacity of GPA holder of DHs was dismissed by Ld. Executing Court, same has no legal relevance to be considered by this Court in subsequent execution petition.
40. Objections filed by counsel for UOI stand disposed in terms thereof. Execution Petition being marred with factual inconsistencies cannot be allowed and hence, is dismissed.
41. File be consigned to the Record Room SHELLY Digitally signed by SHELLY ARORA Announced in the open ARORA Date: 2022.02.26 17:27:48 +0530 (SHELLY ARORA) Court on 26.02.2022 Additional District Judge01(SE), Saket Courts, New Delhi.
Ex - 189/19 Jasram through LRs Vs. UOI . Pg. 25 of 25