Madhya Pradesh High Court
Gurmeet Singh @ Bholu vs Harjeet Singh on 18 April, 2016
1
FA.100/2010
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
FIRST APPEAL NO. 100 / 2010
Gurmeet Singh alias Bholu and others
-Vs-
Harjeet Singh and others
For the appellants : Shri Prashant Sharma, Advocate.
For respondents No.2 : Shri D.D. Bansal, Advocate.
&3
PRESENT: HON'BLE MR. JUSTICE N.K. GUPTA, J.
JUDGMENT
(18/04/2016) The appellants have preferred the present appeal against the order dated 08.04.2010 passed by the First Additional District Judge, Mungaoli, District Ashok Nagar (M.P.) in Execution Case No.4A/03 whereby the application under Order XXI Rule 97 of the Code of Civil Procedure (for brevity "the Code") filed by the appellants was dismissed.
(2) Facts of the case, in short, are that respondents no.2 and 3 had lodged a civil suit against respondent no.1 for specific performance of contract and to provide the possession of the property to them. Vide judgment and decree dated 11.08.2004, the same was decreed and the respondent No.1 was directed to execute the sale deed and provide the possession of the property. Thereafter, the appellants preferred a separate civil suit before the trial 2 FA.100/2010 court which was registered at Serial No.12A/2004 and vide order dated 08.10.2004 the same was dismissed under Order VII Rule 11 of the Code. In first appeal bearing number 46A/2004, the Additional District Judge, Mungaoli, District Ashok Nagar, vide judgment and decree dated 10.03.2005 dismissed the first appeal. The second appeal bearing number 582/2005 was preferred before the High Court and vide order dated 14.08.2006 the same was dismissed. Thereafter, the appellants went before the Apex Court and filed SLP (Civil) No.3973/2007 and the was dismissed vide order dated 28.08.2009. During the pendency of the execution, the appellants have preferred an application under Order XXI Rule 97 of the Code to get their rights exercised and that application was dismissed by the Executing Court.
(3) I have heard learned counsel for the parties on admission.
(4) Learned counsel for the appellants has submitted that the civil suit of the appellants was dismissed on technical ground that no cause of action arose and therefore they had an ample power to file objections under Order XXI Rule 97 of the Code and according to such provision the objection raised by the appellants could not be dismissed without taking evidence on objection.
(5) On the other hand, learned counsel for the respondents No.2 and 3 has submitted that the claim of the appellants was discarded from bottom to top court including the Apex Court and therefore, the same claim could not be raised by them before the executing court. It is also submitted that such application was dismissed on 02.03.2006 and therefore, the repeat application could not 3 FA.100/2010 be filed by the appellants.
(6) After perusal of the case file of the Executing Court, it would be apparent that the appellants have filed an objection in the execution and the same was dismissed on 02.03.2006. Though it was not clearly mentioned that the objections were filed under which provision but if objections dated 07.01.2005 are perused then certainly those fall within the purview of Order XXI Rule 97 of the Code and when the appellants did not prefer any appeal against the order dated 02.03.2006 then certainly the appellants are barred to file a fresh objection under order XXII Rule 97 of the Code. It would be apparent that Harjeet Singh S/o Harbhajan Singh had entered into a contract of sale and after decree of specific performance of contract passed on 11.08.2004 the appellants had no locus standi to file a separate civil suit. Their rights were denied by the Civil Court, First Appellate Court, Second Appellate Court and the Apex Court whereas no appeal was filed by Harjeet Singh, therefore, the decree attained finality. The decree which was given against Harjeet Singh relates to the share of property of Harjeet Singh and therefore the appellants cannot object for the entire decree passed against Harjeet Singh. The purchaser of the property of Harjeet Singh was entitled to get the share equivalent to Harjeet Singh in the property and therefore, the civil suit filed by the appellants was dismissed being found not maintainable. When the right of the appellants was considered by the Civil Court, First and Second Appellate Courts and the Apex Court and the same was denied then the fresh objection could not be filed by the appellants before the Executing Court. Also when first objection was 4 FA.100/2010 dismissed on 02.03.2006 then second objection cannot be raised on the same count and therefore if the Executing Court vide impugned order has dismissed the objection of the appellants then no illegality has been done by the Executing Court.
(7) In this connection, if the order dated 14.08.2006 passed by the Single Bench of this Court in Second Appeal No.582/2005 is perused then in that order it was mentioned that it was for the appellants to intervene in the civil suit filed by the respondents no.2 and 3 against respondent no.1. They did not try to intervene in that civil suit whereas a fresh civil suit was filed by the appellants after the decree was passed against respondent No.1 Harjeet Singh. Hence, in the light of the provision contained under Order II Rule 2 of the Code, the appellants have waived their right over the suit property by not intervening in the civil suit which was pending against respondent no.1 Harjeet Singh. Thus, when the civil suit which was filed by the appellants was filed after passing of the decree by the trial court in favour of respondents No.2 and 3 and therefore, the same was dismissed by the courts from Civil Court up to the Apex Court and therefore, in the light of the Order II Rule 2 of the Code, the appellants are not entitled to file any objection under Order XXI Rule 97 of the Code before the Executing Court.
(8) On the basis of the aforesaid discussion, when the objection under Order XXI Rule 97 of the Code has already been rejected by the Executing Court on 02.03.2006 the appellants could not file the second objection of the same nature. Since they did not intervene in the main civil suit 5 FA.100/2010 prosecuted by the respondents No.2 and 3 against respondent No.1, therefore, at present they are barred to claim their rights over the suit property in the light of provisions contained under Order II Rule 2 of the Code and thus even their first objection under Order XXI Rule 97 of the Code was not maintainable. In these circumstances, no illegality or perversity is visible in the impugned order passed by the Executing Court whereby the objections raised by the appellants under Order XXII Rule 97 of the Code were dismissed. When the objections were not maintainable then it was not for the Executing Court to record the evidence and to establish the claim of the appellants. Under these circumstances, there is no reason to accept the present first appeal filed by the appellants. Consequently, it is hereby dismissed at motion stage. (9) A copy of the order be sent to the Executing Court along with its record for information and to proceed with the execution.
(N.K. Gupta) Judge 18/04/2016 pd