Punjab-Haryana High Court
Avinash Chander And Anr. vs Hazura Singh And Ors. on 14 January, 2001
JUDGMENT M.M. Kumar, J.
1. This is a revision petition filed by the decree-holder against the order dated 13.10.1980 passed by the Executing Court dismissing his execution application, wherein prayer was made that the executing court may issue warrant of possession against the respondent-judgment-debtors.
2. In order to appreciate the controversy in proper prospective. It is important to make a brief reference to the facts of this case, which led to the passing of a decree on 12.4.1960. One Dalla Mal had two sons namely Labhu Ram and Khushi Ram. Khushi Ram died issueless on 25.10.1964 and Labhu Ram had one son namely Kewal Krishan. Labhu Ram died on 1.12.1959. Labhu Ram and Khushi Ram had effected some partition of their joint property on 1.10-1945. On 10.1.1950 Kewal Krishan and his two minor sons Avinash Chander and Subhash Chander filed a civil suit to enforce their right to share in the joint family property by recovery of joint possession of moveable and immovable properties and for declaration that the aforementioned partition alleged to have been effected between Labhu Ram and Khushi Ram on 1.10.1945 or any other date was bogus, factitious and fraudulent. Their suit was decreed by the trial Court on 25.6.1954. The appellate Court decided the appeal on 12.4.1960. After the case had dismissed in appeal in the High Court on certain points, the case of the decree-holder set up before the executing Court that the decree for declaration and setting aside the partition between Labhu Ram and Khushi Ram and for joint possession of the properties mentioned in the plaint as passed by the trial Court was confirmed and the other relief like rendition of account and perpetual injunction was given up by Kewal Krishan and his sons, it is further asserted before the executing Court that the properties not even mentioned in the plaint and all the moveable and immovable properties of the family that may come to light later on belonging to Labhu Ram and Kewal Krishan would also be covered by the decree. The widow and the daughters of Labhu Ram, who were im-pleaded after the death of Labhu Ram have given up their claim. It was further alleged that during the trial of the suit, the properties which are subject matter of the execution petition and the details of which have been given were alienated by Labhu Ram and Kewal Krishan and that the decree-holder took possession of all other properties as decreed in their favour. It is further claimed that Subhash Chander was minor on 12.4.1960 when the District Judge passed the final order and he attained majority on 1.5.1966 i.e. after the Limitation Act, 1963 came into operation. Therefore, it is claimed that the execution application in accordance with the provisions of new Act was within time and was maintainable. It is asserted that the rule of lis pendis envisaged by Section 52 of the Transfer of Property Act, 1894 would apply to the transfer made during the pendency of litigation and thus alienations were void.
3. The executing Court struck seven issues and issue Nos. 1 to 5 were decided against the petitioners- decree-holders. Issue No. 1 was as to whether the execution application could proceed against the objectors-judgment-debtors and issue No.2 was as to whether objector-respondent No. 3 Vir Bhan @ Veer Chand s/0 Arjan Dass purchased the plot No.47 from Labhu Ram and Khushi Ram JDs in good faith and for consideration and without notice and the issue No.5 was with regard to whether the execution application is time barred. On all the aforementioned three issues, the executing court returned findings against the decree-holders.
4. I have heard Shri Alok Jain, learned counsel for the petitioners-decree-holders and Ms. Harsh Rekha, learned counsel for respondents No. 3 and 4 and have perused the record with their assistance.
5. Shri Alok Jain, learned counsel for the petitioners has argued that on the date of passing of final decree by the appellate Court on 12.4.1960, the petitioner-decree-holder Subhash Chander was a minor. He attained the age of majority on 1.5.1966. According to the learned counsel, the execution application was filed on 28.23.1972 and according to the limitation prescribed under Article 136 read with Section 31, the period of 12 years would be applicable and since the date of decree is 12.4.1960 and the execution was filed on 28.3.1972, it was within time. He also relied on Sections 7, 30 and 31 of the 1963 Act. With regard to finding recorded on issue No. 1 that the execution application cannot proceed because their was a compromise dated 12.4.1960 and the parties had settled the dispute and reduced the same into writing and the decree stood executed as is explicit in the compromise Ex.P-3 and nothing remained to be done. Learned counsel submitted that the view taken by the trial Court is not sustainable in law because it was not a collusive decree. In so far as the finding recorded by the executing Court on issue No.2 that the property sold to the respondent-objector No. 3 did not constitute the subject matter of the dispute raised in the suit and, therefore, Veer Chand was a purchaser of plot No.47 for consideration and in good faith and the sale of plot was not hit by the principles of lis pendis postulated by Section 52 of the Transfer of Property Act, 1894. The learned counsel submitted that it was provided in the decree that any property even to be discovered later was to become the subject matter of the decree.
6. Ms. Harsh Rekha, learned counsel for objectors-respondent No.3 and 4 argued that the execution application filed by the petitioners-decree-holders is hopelessly time barred as the period of limitation from 12.4.1960 was three years under Article 182 of the Limitation Act, 1908: She further argued that even under Section 7 of the new Limitation Act, 1963, the minority of Subash Chander on 12.4.1960 would not rescue the petitioners-decree-holders from the running of time because Subhash Chander was jointly entitled to file execution application alongwith his father Kewal Krishan and Avinash Chander. According to Section 7 if one of several decree-holders entitled to make an application for the execution of a decree is under any such disability and a discharge can be given without the concurrence of such person, time will run against them all. Explanation II of the Appendix to Section 7 makes it crystal clear that a manager of a Hindu Undivided Family shall be deemed to be capable of giving a discharge without the concurrence of other members of the family. Therefore, she argued that Kewal Krishan was in a position to give a discharge and could have taken up the execution even when Sub-hash Chander was a minor. Therefore, according to her, the execution application is time barred as no execution could be filed after 11.4.1963, taking the period of three years from 12.4.1960.
7. She further argued that there is no scope to doubt the findings recorded by the executing Court with regard to maintainability of the application because everything was reduced to writing in the shape of a compromise and nothing remained to be done. Therefore, she supports the finding recorded by the trial Court.
8. On the issue that the property of respondent-objector No.3 Vir Bhan @ Veer Chand was also subject matter of dispute raised in the suit, Ms. Harsh Rekha contended that there is not a word in the compromise arrived on 12.4.1960 between the parties with regard to the property sold to Vir Bhan, which her client purchased for consideration and in good faith. She further points out that there was no notice and the same is not hit by the principles of lis pendis Said down in Section 52 of the Transfer of Property Act. I have thoughtfully considered the respective submissions made by the learned counsel for the parties and am of the view that this is a frivolous piece of litigation initiated by the petitioner-decree-holders. In my opinion, once there is a compromise reduced to writing and in accordance with that compromise, all acts have been done, the application for execution is not even maintainable. The law with regard to collusive decree is well settled and no one to such decree could claim execution of such like decrees. On the issue of limitation also, there is hardly any doubt that the compromise recorded on 12.4.1960 if at all amounted to a decree could have been subject matter of execution proceedings till 11.4,1963. The new Limitation Act of 1963 was in force with effect from 1.1.1964 and by no stretch of imagination, it is retrospective. Therefore, under Article 182, a period of three years limitation has been provided for the execution of a decree. This principle is well settled by judgments of this Court in Amar Nath and Ors. v. Mul Raj (deceased) represented by his legal representatives, and Ors., (1975)77 P.L.R. 175 (F.B.) and Ram Sarup and Ors. v. Sher Singh and Ors., A.I.R. 1979 Punjab and Haryana 65. Both these judgments are based on a Full Bench judgment of the Kerala High Court rendered in Ponnamma Pillai Indira Pillai and Anr. v. Padmanabhan Channar Kesavan Channar Kesavabhavanam and Ors., A.I.R. 1969 Kerala 163. It is pertinent to mention that the same view has been taken by this Court in Mewa Singh and Ors. v. Jagdish Singh, 1988(2) Revenue Law Reporter 364.
9. In so far as the property sold to respondent-objector No.3 is concerned. It was purchased on 22.4.1957 vide registered sale deed Ex.R-1, the sale is for consideration and without notice. Therefore, it is not hit by the principles of lis pendis postulated by Section 52 of the Transfer of Property Act.
10. For the reasons recorded above, this revision petition fails and is dismissed with costs. Which is assessed at Rs. 5000/-.