Rajasthan High Court - Jodhpur
Smt. Shanti Devi & Ors vs Chimanaram Mantri Trust & Ors on 8 August, 2017
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 10272 / 2016
1. Smt. Shanti Devi W/o Late Indrachand, Aged About 60 Years, R/o- Near Sewa Samiti, Churu
2. Manoj Kumar S/o Late Indrachand, Aged About 38 Years, R/o- Near Sewa Samiti, Churu
3. Dharmendra Kumar S/o Late Indrachand, Aged About 36 Years, R/o- Near Sewa Samiti, Churu
4. Rekha D/o Late Indrachand, Aged About 34 Years, R/o- Near Sewa Samiti, Churu
5. Madhuri D/o Late Indrachand, Aged About 30 Years, R/o- Near Sewa Samiti, Churu
----Petitioners Versus
1. Chimanaram Mantri Trust Through Its President Shankerlal, R/o- Mantri Sadan, Mantri Marg, Churu
2. Shankerlal S/o Shri Riddhakaran, R/o- Mantri Sadan, Mantri Marg, Churu (trustee, Chimanaram Mantri Trust)
3. Satyanarayan S/o Shri Gangadhar, R/o- Mantri Sadan, Mantri Marg, Churu (trustee, Chimanaram Mantri Trust)
4. Prakash Mantri S/o Shri Sagarmal, R/o- Mantri Sadan, Mantri Marg, Churu (trustee, Chimanaram Mantri Trust)
5. Murarilal S/o Shri Sagarmal, R/o- Mantri Sadan, Mantri Marg, Churu (trustee, Chimanaram Mantri Trust)
6. Banwarilal S/o Shri Sagarmal, R/o- Mantri Sadan, Mantri Marg, Churu (trustee, Chimanaram Mantri Trust)
7. Senior Civil Judge, Churu (raj.)
----Respondents _____________________________________________________ For Petitioner(s) : Mr. B.S. Sandhu For Respondent(s) : Mr. Manish Shishodia Mr. Anirudh Khatri _____________________________________________________ (2 of 27) [CW-10272/2016] JUSTICE DINESH MEHTA Judgment REPORTABLE 08/08/2017
1. The petitioners have solicited this Court's intervention in its supervisory jurisdiction under Article 227 of the Constitution of India, being aggrieved of the order dated 01.08.2016 passed by learned Senior Civil Judge, Churu - the Executing Court, whereby their application dated 07.04.2016 for framing the issues and leading evidence in execution case has been rejected.
2. The core question, on which the rival counsel addressed this Court is; "as to whether framing of issues and recording of evidence is quintessential to the adjudication of an objection petition, in the course of execution proceedings ?"
2. Though the facts are copious and history is checkered; but for the purpose of deciding the issue involved in the instant writ petition, only a handful of them are relevant; which have been set out here under :-
3.1 Petitioners and the Respondents (Trustees) descend from a common ancestor Ganeshdas, who owned and possessed certain properties under various 'pattas' issued in the names of his ancestors. The petitioners have claimed their rights, interest and (3 of 27) [CW-10272/2016] title in the ancestral property, which in its entirety has been placed under a Trust.
3.2 The dispute dates back to November, 1965, since formation of a trust namely Chimnaram Mantri Charity Trust, which was formed by way of a trust deed dated 10.11.1965, duly registered before the Sub-Registrar, Churu. At the time of formation of the Trust, various properties belonging to the family including their common/respective ancestors etc. were subsumed in the list of Trust property and the right, title and interest therein were settled in the trust, by way of a Trust Deed.
3.3 The plaintiff - Respondent No.1 - Chimnaram Mantri Charity Trust and other plaintiffs being trustees of the trust had been managing and maintaining various properties such as Gaurishankar and Saligram ji Temple, Dharmshala, Chhatariyas including the disputed property. With a view to take care of the temple, one Nanagram was appointed as a 'Pujari' and was allowed to stay in two 'kotadies' underneath the 'chhatries'. When said Nanagram - the original 'Pujari' died on 20.2.1977, the plaintiffs wanted to deploy someone else as 'Pujari' of the temple, when the son of said Nanagram, defendant No.1 objected to it and started performing the 'Pooja'/worship in the temple. When asked to vacate, the defendant No.1 not only refused to vacate the premises but also transferred large chunk of the land to defendant No.4 and 5.
(4 of 27) [CW-10272/2016] 3.4 Faced with such situation, the plaintiffs filed a suit for cancellation of the sale deeds dated 16.4.1979 and 21.6.1979, executed by the defendant No.1 and for his eviction. The said suit filed by the plaintiffs came to be decreed by Civil Judge, Churu vide a judgment and decree dated 28.08.1993 whereby the sale deeds executed by defendant No.1 were annulled and a decree of eviction was issued against the defendants. 3.5 It is noteworthy that the defendants being legal representatives of original 'Pujari' Nanagram preferred first appeal before the District Court and second appeal before this Court, which were dismissed and the original decree dated 28.08.1993 had become final.
3.6 During the pendency of the execution proceedings even Jagdish Prasad and the person claiming possession of the property lodged objections, which were rejected and attained finality. The Execution Second Appeal, preferred by them were rejected by the Court, vide its order dated 19.07.2011 and writ petition filed by Jagdish Prasad was rejected vide Judgment dated 04.12.2015 passed in SB Civil Writ Petition No.8862/2013 (Jagdish Prasad Vs. Chimnaram Mantri Trust).
3.7 However, the execution remained pending, during which objections came to be filed by the petitioners, being descendants of Ganesh Dasji and Shiv Lalji stating inter alia claiming that they (5 of 27) [CW-10272/2016] are entitled to half share of the entire property including the disputed property, being legal representatives of Ganesh Dasji and Shiv Lalji. It was stated in the objection petition that the land and other property belonging to them/ their family had been illegally placed/taken in the hotchpot of the trust, for which neither Ganesh Dasji nor his successor had ever given consent. In the detailed objection filed under Order XXI Rule 97 of Code of Civil Procedure, the petitioners - objectors contended that the judgment and decree dated 28.08.1993 had been illegally obtained, ignoring their right, interest and title. It was also contended that they are in actual possession of the property, including the temple and 'kotadies' and that defendant No.1 being son of said Nanag Ram had been authorized by them to act as 'Pujari' of the temple and that the actual possession of the property through said 'pujari' rests with them. The objectors - petitioners in their application prayed as under :-
^^ vr% mtjnkjh izkFkZuk&i=@ vkifr izkFkZuk&i= is'k dj vtZ gS fd izkFkhZx.k mtjnkjku dh vkifr ,oa mtjnkjh Lohdkj Qjek;h tkdj && d- djkj fn;k tkos fd mtjnkjku dh bl mtjnkjh dh en la- 3 es ntZ reke lEifr;ksa esa [email protected] viuh iSr`d lEifr mtjnkjku ds iwoZt x.ks'knklth o f'koykyth ,oa fpeukjke :iyky dh fefYd;rh dh Hkwfe esa 1@2 fgLls ds crkSj ekfyd dkfct ok vf/kdkjh gSaA [k- djkj fn;k tkos fd nkok la- 12@93 vuqokuh fpeukjke psfjVh VªLV cuke txnh'kizlkn vkfn esa ikfjr fMØh fnukafdr 28-03-1993 U;k;ky; flfoy U;;k/kh'k o-[ka- pw: dh fu"iknu dk;Zokgh i=koyh la- bZtjk; 07@2005 vuqokuh fpeukjke psfjVh VªLV cuke txnh'kizlkn vkfn dh fu"iknu dk;Zokgh dh i=koyh ds ek/;e ls izkFkhZx.k mtjnkjku dks mudh fefYd;rh edcwtk rFkk mi;ksx miHkksx dh iSr`d Hkwfe es muds fgLls 1@2 dh Hkwfe ij ls csn[ky fd;s tkus ;ksX; ugha gS ,oa (6 of 27) [CW-10272/2016] fMØhnkjku dh mDr fu"iknu dk;Zokgh izkFkhZx.k mtjnkjku ds fo:) pyus ;ksX; ugha gSZA x- vU; dksbZ vkns'k tks fof/k lEer ok U;k; laxr ik;k tkos cgd izkFkhZx.k mtjnkjku ,oa fo:) fMØhnkjku fpeukjke ea=h psfjVh VªLV pw: ,oa leLr VªLVhx.kksa rFkk xSj mtjnkjku ik;k tkos ikfjr Qjekok tkosaA ?k- izkFkhZx.k mtjnkjku dks [kpkZ dk;Zokgh fnyok;h tkosA** 3.8 The objections aforesaid came to be filed by the petitioners on 8.5.2013, in the execution petition filed by the Decree Holders, way back in the year 2005. The reasons for delay in obstructing the execution as portrayed in the application were that they (petitioners) came to know about the passing of the judgment and decree and pendency of the execution only on receipt of a copy of the reply to the application, seeking temporary injunction (TI No.31/2012), in a suit for permanent injunction, filed by them.
On perusal of the said reply, the petitioners said, they found a reference of the judgment and decree dated 28.08.1993 and further that the same has attained finality. 3.9 During the pendency of the execution petition, the petitioners - objectors moved an application dated 7.4.2016 and prayed that the objection petition be decided after framing of issues and recording of evidence. The said application preferred by the petitioners came to be rejected by learned Executing Court vide its order dated 01.08.2016, observing as under :-
^^gLrxr mtznkjh es mHk; i{k }kjk vius&vius leFkZu esa nLrkostkr is'k fd;s x;s gSA mi;qZDr leLr rF;ksa dks ns[krs gq, U;k;ky; fouez er gS fd i=koyh ij bl mtznkjh ds fuf.kZr djus ds fy, i;kZIr (7 of 27) [CW-10272/2016] nLrkosth lk{; ekStwn gSa ftuds vk/kkj ij bl mtznkjh dk fu.kZ; fd;k tk ldrk gSA U;k;ky; mtznkjh ds fu.kZ; gsrq rudh;kr cjken fd;k tkuk vksj mu ij mHk; i{kksa dh lk{; fy;k tkuk U;k;ksfpr ugha ikrk gSA ,slk fd;s tkus ls U;k; ds fdlh mn~ns'; dh iwfrZ ugha gksxh] vfirq mtznkjh ds fu.kZ; esa vuko';d foyEc gh dkfjr gksxkA tgka rd mtznkj dh vksj ls izLrqr lEekfur U;kf;d uthjks dk iz'u gS] gLrxr izdj.k dh rF; ,oe~ ifjfLFkfr;kWa U;kf;d uthjksa dh rF;ksa ,oa ifjfLFkfr;ksa ls fHkUu gksus ds dkj.k izkFkhZ@mtznkj budk ykHk izkIr djus dk vf/kdkjh ugha gSA ,rn~}kjk mtznkjh ds lEcU/k eas xq.kkoxq.k ij fdlh izdkj dh fVIi.kh fd;s fcuk mtznkj dh vksj ls izLrqr izkFkZuk i= fnukafdr 07-04-2016 vUrxZr /kkjk 151 tkCrk nhokuh vLohdkj dj [kkfjt fd;k tkrk gSA i=koyh okLrs cgl mtznkjh fnukad 17-08-2016 dks is'k gksA** 3.10 While rejecting the application of the petitioners with above observation, the learned Court below opined and held that the objections under consideration had been lodged by the petitioners on 8.5.2013; if the petitioners were of the view that it is imperative or necessary to frame issues and lead evidence, a request to this effect ought to have been made earlier. The Executing Court, with concern noted that on the contrary, the objectors have been seeking adjournments for arguing the objection petition.
4. Oppugning the aforesaid order dated 01.08.2016 passed by the Executing Court, Mr. B.S. Sandhu, learned counsel for the petitioners contended that the learned Court below has erred in rejecting petitioners' application dated 07.04.2016, solely on the ground of delay. He contended that operative portion of the order under challenge clearly shows that the Executing Court got swayed by the fact that there is a delay in filing the application, (8 of 27) [CW-10272/2016] for framing the issues and leading the evidence, which should not have been a consideration of the Executing Court in the present factual backdrop. He submitted that host of judgments were cited before the Court below, holding that the execution application should be decided and tried as a suit itself and the Court should frame issues and record evidence for doing the complete justice.
5. In support of his arguments that the Executing Court is required to frame issues and record evidence, learned counsel for the petitioners relied upon the following judgments :
(1) (2009) 3 CCC p.139 (Para-13) (2) (2009) 4 CCC p.151 (Para-21) (3) (2014) 1 CCC p.157 (Para-15) (4) (2013) 4 CCC p.43 (Para-5 and 8).
6. While navigating the Court through various paragraphs of the aforesaid judgments, Mr. Sandhu canvassed that it was incumbent upon the Executing Court to first frame the issues and then record the evidence, in terms of the issues, for proper decision of the objection filed by the petitioners. He took this Court through various documents to convince that the contentious property belong to them, which has been illegally grabbed by the Plaintiffs, as averred in their objection petition.
7. On the other hand, learned counsel appearing on behalf of the respondents, the decree holders, Mr. Manish Shishodia, with (9 of 27) [CW-10272/2016] full vehemence and eloquence argued that the present case is a glaring example of the old saying, "the real trial begins after the decree". At the outset, he submitted that the objections as well as the present writ petition has been filed at the behest of Jagdish Prasad and other and judgment debtors. To substantiate his allegation, he pointed towards an application filed on behalf of the petitioners, under Section 24 of the Trust Act, which though had been filed in the name of petitioners, but signed by none else than Jagdish Prasad Upadhyay - the judgment debtor, who is likely to be scooped out of the subject property, pursuant to the judgment and decree dated 28.08.1993. Explaining the nexus between the petitioners and said the judgment debtors, counsel for the respondents submitted that the petitioners have joined hands with Jagdish Prasad, and have launched various litigation, including filing of the application under Section 24 of the Rajasthan Public Trust Act and present writ petition.
8. With an idea of bringing to fore, the collusion and conduct of the petitioners and said judgment debtor, counsel for the Respondents contended that even if it is presumed that the disputed property was brought in the purview of the trust, without knowledge and consent of the petitioners' ancestors, then also the assertion of the petitioners cannot be accepted that they were unaware of the fact that such a huge property, half of which was owned by them, was being managed by the trust for about 50 years. He added that the stance of the petitioners - obstructors that they are in possession of the property is baseless and (10 of 27) [CW-10272/2016] untenable. Mr. Shishodia further contended that the stance of the petitioners that they are in possession of the property through Jagdish Prasad, is a farce and not only the present writ petition, even their objections are liable to be rejected out-rightly.
9. At the end, Mr. Shishodia submitted that without admitting, even if it is presumed that the petitioners are entitled to half share in the property, then also, for claiming such rights, the petitioners have already filed a suit and application for temporary injunction being TI No.31/2012, and the same is pending consideration before the District Judge, Churu. Their rights, if at all exist, they will be determined by the Court in those proceedings. He urged that the petitioners cannot obstruct the execution of a decree, whereby two sale deeds dated 16.4.1979 and 21.6.1979, executed by the defendants in favour of the defendants No.4 and 5 had been set at naught and an order of ejection has been passed. Treading ahead with his arguments, learned counsel for the respondents submitted that even if it is presumed that the petitioners were owner of the property, the sale deeds in question executed by defendants No.1, 2 and 3 would nevertheless remain void and so also their possession over the property remains unauthorized. With these submissions, counsel for the petitioners contended that the petitioners cannot be permitted to create a road-block in the way of execution of the decree, qua which, the petitioners are alien.
10. Having highlighted the conduct of the petitioners, Mr. (11 of 27) [CW-10272/2016] Shishodia addressed the Court on the legal issue by contending that it cannot be held as a matter of course, that in each and every case, the Executing Court is required to frame issues and permit the parties to lead evidence. Learned counsel submitted that there cannot be a straitjacket formula for deciding an execution application and it is a discretion of the Executing Court to evolve or adopt a procedure for each case, depending upon facts, circumstances and available material. Learned counsel submitted that the Court below has passed a reasoned order and held that the objections of the petitioners can be decided on the basis of the material available with it and there is no requirement of framing issues and leading of the evidence. He submitted that such discretionary orders are not meant to be interfered with by this Court, in exercise of its supervisory jurisdiction. Counsel for the respondents contended that the Court below has committed no illegality or error of jurisdiction in rejecting the petitioner's application, which was filed after taking umpteen number of adjournments for arguing the application. The entire idea of the petitioners is to stall or protract the execution proceedings, contended Mr. Shishodia.
11. To buttress his submission that it is not necessary for the Court to frame the issues and record evidence in an execution petition, Mr. Shishodia relied upon the following judgments :
1. 1998 (3) SCC p.723 (Para 12 and 14)
2. 2007 (1) WLC P.21 (Para 11 and 12)
3. 2005 (2) WLC p.751 (Para 9 and 10) (12 of 27) [CW-10272/2016]
4. AIR 2004 (Raj.) p.324 (Para-11)
5. 2008 (1) WLC (Raj.) p.227.
12. I have considered the arguments advanced by both the counsels and authorities cited at Bar.
13. Before adverting to the facts of the present case, it would be worthwhile to first wade through the judgments cited by the rival sides, to explore the expanse of execution proceedings and to decipher the procedure, how the execution proceedings are required to be conducted and the objections dealt with.
14. The first judgment cited by Mr. Sandhu, rendered by Punjab & Haryana High Court is in case of Bhagwan Bai Vs. Chiranji Lal, reported in 2009 (3) CCC p.139. Relevant paras No.10, 13 and 14 relied upon and referred by Mr. Sandhu are being reproduced hereunder :-
"10. Now the question in the present appeal is as to whether the Courts below have rightly dismissed the objections without framing issues or should have allowed the objection petition to be treated as a suit in view of the provisions of Order 21 Rule 97 and 101 of the CPC. No doubt, Order 21 Rule 102 of the Code specifically provide that Rules 98 and 100 of the Code shall not apply to the resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit on the ground of lispendens but there is an exception in Section 52 of The Transfer of Property Act (13 of 27) [CW-10272/2016] 1882, which is reproduced below :-
Section 52- "Transfer of property pending suit relating hereto.- During the (pendency) in any Court having authority [within the limits of India excluding the State of Jammu & Kashmir or established beyond such limits] by [the Central Government] [***] of [any] suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."
13. The judgments relied upon by Mr. Vikas Kumar, learned counsel for respondent No.1 are altogether on different facts in view of Rule 21 Rule 102 of CPC that the objections are not supposed to be decided like a suit and can be adjudicated upon summarily, because in the present case, once there is a categorical allegation containing the objection that the decree which is sought to be executed has been obtained by collusion by the decree holder with the judgment debtor, the provisions of Section 52 of the Transfer of Property Act, shall not apply and the Court has to adjudicate this fact after framing an issue in this regard and give proper opportunity to both the parties to lead their evidence.
14. In view of the above discussion, the present appeal is allowed. The orders of both the Courts below are set aside and the case is remitted back to the Executing Court with a direction to frame appropriate issues on the basis of pleadings of the (14 of 27) [CW-10272/2016] parties and after allowing them reasonable opportunities to lead their respective evidence decide the matter afresh as expeditiously as possible, preferably within six months from the date of receipt of a copy of this order. No costs."
15. In the above case, Punjab & Haryana High Court has remanded the matter and directed the Executing Court to allow the objectors reasonable opportunity to lead their evidence. A close reading of the facts of the case before Punjab & Haryana High Court reveals that the objectors therein had alleged a collusion between the plaintiff and the defendants, whereas in the present case, there is no such allegation of collusion levelled by the petitioners - objectors. On the contrary, it is the allegation of the decree holder that objections have been filed by the petitioners simply with a view to help the judgment debtor.
In case of allegation of fraud or collusion by the objectors, the objectors may be required to prove additional facts, which may require recording of oral evidence or cross examination of the concerned parties, but in absence of such allegation, the oral evidence as held by the Court below can be unnecessary and unwarranted.
16. In another judgment cited by Mr. Sandhu in case of Subhash Chander & Anr. Vs. Smt. Phoolwati & Ors., reported 2009 (4) CCC p.151 (P&H), the Punjab & Haryana High Court has held that the executing Court is required to afford an opportunity to the parties to lead evidence and that fact could only be decided after relevant (15 of 27) [CW-10272/2016] issues are framed. Such finding of Punjab & Haryana High Court has to be examined in the facts of the case, which have been narrated in para-21 of the said judgment. A careful reading of para-21 of the judgment reveals that the Court has reached to such conclusion, in wake of the question involved as to whether a decree holder/ respondents No.1 to 6, against the judgment debtor - respondent No.8, no right or title was left so as to suffer a decree in their favour as the property had already been sold by the respondent No.8 to the appellant vide a sale deed dated 20.12.1993. The Punjab & Haryana High Court, thus, observed "whether there is fraud or collusion between decree holder or judgment debtor, who did not contest the suit", is a question of fact, which could be proved only on the basis of pleadings of the parties, appropriate issues are framed and opportunity is granted to the appellant to lead their evidence. The aforesaid finding has been given by Punjab & Haryana High Court keeping in view the facts of the said case, in which there were allegation of a fraud or collusion between the decree holder and the judgment debtor, who did not contest the suit. In the present case, the facts are entirely different. There is no allegation of any fraud or collusion between the judgment debtor and decree holder. On the contrary, the factual spectrum of the of the case shows that the judgment debtor has not only contested the suit tooth and nail, but had left no stone unturned to stultify the decree. In view of the above, the judgment of Punjab & Haryana High Court (supra) is distinguishable on facts. The relevant para of the said judgment, read by Mr. Sandhu is reproduced hereinfra :-
(16 of 27) [CW-10272/2016]
"21. In respect of third submission that the learned Courts below have erred in not framing the relevant issues in order to given an opportunity to the parties to prove their case by leading cogent evidence on the ground that the objections are frivolous because the question involved in this case is as to whether at the time when the suit was filed by the Decree Holders/respondent Nos. 1 to 6 against the judgment debtor-respondent No.8, no right or title was left with him so as to suffer a decree in their favour as the property had already been sold by respondent No.8 to the appellants vide sale deed dated 20.12.1993. Thus, whether there is a fraud or collusion between Decree Holder or Judgment Debtor who did not contest the suit, is a question of fact which could be proved if on the basis of pleading of the parties, appropriate issues are framed and opportunity is granted to the appellants to lead their evidence because the objections filed under Order 21 Rule 97 of the CPC have to be decided as a suit. Under Order 21 Rule 101 of the CPC, the executing Court is required to afford an opportunity to the parties to lead evidence and that fact could only be decided after relevant issues are framed. Thus, in my view, the learned Courts below have erred in not framing the issues to decide the aforesaid question of fact."
17. The third judgment relied upon by Mr. Sandhu was judgment in case of Gaurav Arya & Ors. Vs. Civil Judge (Senior Division) & Ors., reported in 2014 (1) CCC 157 (Allahabad), wherein the Allahabad High Court has observed that after amendment in Rule 101 of Order XXI of Code of Civil Procedure, when the person who claims to be in possession of the property raises an objection, the (17 of 27) [CW-10272/2016] Executing Court is required to examine the issue as to who is in possession and in such event, the Executing Court cannot deny an opportunity of leading oral or documentary evidence for proving his right, title and interest in the property. The relevant para of the said judgment, read by Mr. Sandhu is reproduced hereinfra :-
"15. Insofar the above submission is concerned, the said decision of the Bombay High Court was a decision delivered in the year 1968. The Rule 101 of Order XXI CPC has undergone change by an amendment in the year 1976. Rule 101 as it reads prior to 1976 amendment is quoted hereunder :-
101. Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct that the applicant be put into possession of the property.
Rule 101 as amended after 1976 is quoted hereunder :-
"All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceedings on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the court dealing with the application, and not by a separate suit and for this purpose, the court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."
The aforesaid amendment indicates that all disputes are to be settled by the Executing Court under Order XXI Rule 101 CPC. In the present case the petitioners are not the judgment debtor. The petitioners are non-party to the Original Suit and the (18 of 27) [CW-10272/2016] petitioners claim to be in possession of the property in question by virtue of it being let out to them by the erstwhile decree holder. Therefore this is not a case of an obstruction by a judgment debtor or a person claiming through the judgment debtor. Under such circumstances, the questions which have to be determined under Rule 101 of Order XXI CPC are with relation to the petitioner who is in possession of the property at the instance of the erstwhile decree holder and are to be determined by the Executing Court which shall have jurisdiction to decide such questions. Therefore, in view of the amended provision of Rule 101 of Order XXI CPC the court below could not deny an opportunity to the petitioners obstructor to lead oral or documentary evidence for the purpose of proving his right, title and interest which according to the petitioners has been disputed and denied by the respondents."
18. In the aforesaid case, the Allahabad High Court has permitted the obstructor to lead oral and documentary evidence. The said judgment, however, does not lay down that in each case oral evidence of an obstructor is required to be recorded.
19. Going by the ratio of this judgment, since, the documentary evidence has already been tendered by the petitioners, it cannot be asserted that even leading oral evidence can also be asked for as a matter of course and right.
20. Fourth judgment cited by Mr. Sandhu was a judgment of Bombay High Court rendered in Kuber Housing Investment & (19 of 27) [CW-10272/2016] Finance Private Limited Vs. TCI Finance Limited & Ors., reported in 2013 (4) CCC p.43. The relevant para No.8 of the said judgment relied upon by Mr. Sandhu is reproduced hereunder :-
"8. We have indicated the basis and foundation on which the Appellant has claimed title to the immovable property. We are not called upon at this stage to evaluate whether the Appellant has established a title to the property, since in our view it was for the learned Single Judge in the course of the execution proceedings to adjudicate upon that question once the Appellant had sought a lifting of the attachment on the ground that it was the appellant who had title to the property. Such a claim in the course of execution proceedings cannot be disposed of summarily. A claim of this nature cannot be asserted by way of an independent suit but has to be raised in the course of the execution proceedings. Order XXI Rule 101 of the Code of Civil Procedure, 1908 postulates that all questions (including the question relating to right, title or interest in the property) arising between the parties to a proceedings on an application under Rule 97 or Rule 99 and relevant to the adjudication of the application shall be determined by the Court dealing with the application and not by a separate suit. The meaning and purport of these rules of Order XXI has been dealt with in several decisions of the Supreme Court including Ashan Devi and Another Vs. Phulwasi Devi and others 2004(1) Civil Court Cases 212 (S.C.) : 2004(1) Apex Court Judgmetns 25 (S.C.) : 2003(12) SCC
219. The Supreme Court observed after referred to the earlier decisions that the provisions of Order XXI, Rules 97 and 99 have been widely and liberally construed to enable the executing court to adjudicate the inter se claims of the decree-holder and third (20 of 27) [CW-10272/2016] parties in the course of the execution proceedings themselves to avoid prolongation of litigation by driving parties to file independent suits. The Supreme Court further observed as follows:
"25. In interpreting the provisions of Order 21 Rule 97 of the Code and the other provisions in the said order, the aims and objects for introducing amendment to the Code cannot be lost sight of. Under the unamended code, third parties adversely affected or dispossessed from the property involved, were required to file independent suits for claiming title and possession. The legislature purposely amended provisions in Order 21 to enable the third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of litigation and arrest delay caused in execution of decrees."
21. The Bombay High Court in the said judgment has held that a claim of title in the course of execution proceedings cannot be disposed of summarily, such claim cannot be asserted by way of an independent suit but has to be raised in the course of execution proceedings. Such position of law cannot be disputed.
22. However, in the present case, the petitioners' right of resistance has not been denied by the Executing Court. By way of order impugned, the Executing Court, on the basis of facts involved, has held that there is no requirement of framing the issues and permitting the oral evidence.
(21 of 27) [CW-10272/2016]
23. On careful analysis of the case laws referred above, this Court finds that none of the authorities cited by counsel for the petitioners enunciates that the recording of evidence and framing of the issues is prerequisite for deciding an objection petition under Order XXI Rule 97 of the Code of Civil Procedure or the same can be claimed as a matter of right.
24. Adverting to the judgments cited by Mr. Manish Shishodia, this Court has gone through the judgment of Silverline Forum Pvt. Ltd. Vs. Rajiv Trust & Anr., reported in (1998) 3 SCC p.723, the Hon'ble Supreme Court in para No.14 of the report has held that the adjudication under Order XXI Rule 97 of Code of Civil Procedure does not contemplate detailed enquiry or collection of evidence. The Court can make adjudication on admitted facts or even on the basis of averments made by the resister; of course, the Court can direct the parties to adduce evidence for such determination, if the Court deems necessary. For the sake of ready reference, para 14 of the said judgment is reproduced hereunder :-
"14. It is clear that the executing court can decide whether the resister or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97 (2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. The court can make the adjudication on admitted facts or even on the averments made by the resister. Of Course the court (22 of 27) [CW-10272/2016] can direct the parties to adduce evidence for such determination if the court deems it necessary."
25. A careful reading of the aforesaid judgment reveals that the Hon'ble Supreme Court has clearly held that recording of evidence is not necessary in each case. The Court in a given case, if deemed necessary, can direct the parties to adduce evidence.
26. The second judgment relied upon by Mr. Shishodia was a judgment of this Court in case of Mukesh Chouhan Vs. Ram Prasad & Anr., reported in 2007 WLC p.21, wherein this Court in para 18 has held as under :-
"18. As observed above, indisputably even a stranger has a right to obstruct and resist the decree and has locus standi to raise objection and it is for the Court to decide as to which of modes has to be adopted while examining objections raised and there cannot be hard and fast rule that whenever application is filed, such objection has to be tried as a regular suit by permitting either of parties to adduce evidence. Since in instant case there was no prima facie material on record to show independent right, title or interest over decreetal premises claimed by resister (third party) (petitioner), learned trial Court took note of totality of facts brought by objector in his application and has not found any merit thereon."
27. Third judgment relied upon by Mr. Shishodia was a judgment of this Court in case of Lalita Vs. Civil Judge (Jr. Div.), Udaipur City (South), Udaipur & Ors., reported in 2005 (2) WLC p.751. The (23 of 27) [CW-10272/2016] facts of the said case as noticed in para No.2 of the said judgment are that the Executing Court in its order had held that there is no need to allow the parties to submit oral evidence and the matter can be decided on the basis of evidence already available on record, but after hearing both the parties. Upholding the order of the Executing Court, impugned in the said case, learned Single Judge of this Court held as under :-
"12. ... ... ... In this case, since the only point has been decided by the executing court, which in fact, only a decision of the executing court not allowing the parties to lead oral evidence and the court decided that the court will decide the petitioner on the basis of the material available on record, therefore, the executing court's decision is concerned, no fault can be found and there appears to be no reasonable basis to hold that the trial court will not permit the petitioner from submitting appropriate application for appropriate relief and the trial court will not decide the application in accordance with law and after hearing both the parties including granting relief to cross-examine etc."
28. In another judgment in case of Smt. Jahoran Vs. Kalyanmal & Ors., reported in AIR 2004 Raj. p.324, this Court has held that the witnesses cannot be summoned merely because there is an application and prayer for summoning the witness and cross- examination. Discussing the law on the subject, this Court has drawn the conclusion in para -11, in the following terms :-
"11. In view of this judgment, which was relief upon by learned counsel for the petitioner himself, it is clear that the Court is not under an obligation to summon the witnesses simply because there is an application (24 of 27) [CW-10272/2016] and prayer for summoning the witnesses for cross- examination. The petitioner is required to make out a case for summoning the witnesses for cross- examination and for that purpose he is required to show not only cogent reasons for summoning the witnesses but also to show his bona fides. The Hon'ble Supreme Court also held that it is for the Court to decide how to proceed in a matter when objection is filed under Order 21, Rule 97, CPC and the same judgment was relied upon by both the parties then it hardly remains a dispute about the jurisdiction of the executing Court about the procedure to be adopted."
29. A careful reading of another judgment cited by Mr. Shishodia in case of Navneet Kumar Vs. Mahesh Chand Gupta & Ors., reported in 2008 (1) WLC p.227 shows that the facts involved and the law laid down therein is entirely different and does not help this Court in answering the question involved in the present case, as to whether recording of evidence and framing of issue in the present case is necessary.
30. On a careful and comprehensive reading of the judgment cited by rival counsels, this Court has discerned that framing of issues and recording of evidence in execution proceedings is not essential in each case. As far as framing of issues is concerned, the Courts can frame point of determination but such determination may or may not require recording of the evidence. If the executing Court, on the basis of the material available on record, coupled with the pleadings of the parties, feels that recording of evidence or summoning of witness is needed, the (25 of 27) [CW-10272/2016] same can be ordered. But, for that purpose, the applicant has to clearly indicate in his application, the reasons necessitating such order and relevance of the evidence to be recorded. Recording of evidence can neither be asked as a matter of right nor can the same be ordered as a matter of course. The applicant has to assert and give cogent reasons indicating therein the nature of dispute, the assertion of the parties and the facts which are required to be proved by oral evidence.
31. In the present case, the petitioners' application is as casual as it could be. The petitioners - objectors have simply moved a three line application, requesting the trial Court to frame the issues and record evidence, without even indicating as to why recording of evidence is necessary, much less the list of witnesses and the points which they proposed to prove, beyond the documentary evidence.
32. In view of the factual backdrop of the case, particularly when on the basis of the documentary evidence as placed by the petitioners, if the trial court has come to a conclusion that recording of evidence and framing of issues is not necessary, no fault can be found in the order impugned.
33. The petitioners, claiming themselves to be the owner of the half share of the property, have got up from their slumber, after about 50 years of the property having been vested in the (26 of 27) [CW-10272/2016] respondent Trust, namely Chimanaram Mantri Trust, vide trust deed dated 10.11.1965. It is difficult nay impossible to believe the stand of the petitioners that the property in question had been conveyed or settled in favour of the trust, without knowledge leave apart the consent of their ancestors. If the stand of the objectors is accepted that it was the ancestors of late Shri Tola Ramji, who had appointed Nanagram as 'Pujari' of the temple, one cannot but believe that said Nanagram 'Pujari', and subsequent to his death, Jagdish Prasad 'Pujari', judgment debtor would not even inform said Tola Ramji and/or his descendants (petitioners), about the factum of institution of the suit against him and consequential decree. The story as projected by the petitioners is also unbelievable that the fact that their share had been conveyed to the trust, without their knowledge and consent, came to their notice only on perusal of the reply to the TI application.
34. If the subject properties were being managed by the petitioners or their ancestors, they can not claim ignorance of filing of the suit by the trust against the judgment debtor, who was a 'Pujari' deployed by them. The facts as pointed out by the learned counsel for the respondents, are indicative that the proceedings have been taken, at the behest of the judgment debtor - Jagdish Prasad, who had filed an application under Section 24 of the Trust Act, ostensibly in the name of the petitioners but, under his signatures.
35. Without observing much about the conduct and stand of the (27 of 27) [CW-10272/2016] parties, suffice it to observe that the objectors have already placed before the Executing Court, the material purportedly, showing their right, interest and title in the property. The Executing Court will decide the same in accordance with law.
36. This Court is of the considered opinion that looking to the nature of decree whereby two sale deeds dated 16.4.1979 and 21.06.1979 had been annulled and order of eviction of the defendants had been passed, the Court below has rightly held that the material available with it, is sufficient to decide the objections raised by the petitioners - objectors.
37. The Executing Court after considering the factual matrix obtaining in the execution proceedings, has reached to a conclusion that neither framing of the issues nor recording of the evidence is required, this Court does not feel inclined to interfere in such discretionary order, in exercise of its otherwise discretionary - supervisory jurisdiction, being guided by the principles enunciated by the Supreme Court and this Court.
38. In view of above, the order dated 01.08.2016 passed by Senior Civil Judge, Churu is hereby affirmed, while instant writ petition is dismissed. No order as to costs.
(DINESH MEHTA) J.
Arun/PS