Delhi District Court
1754 Silverline Forum Pvt. Ltd. vs . Rajiv Trust; 1976 Rajdhani Law ... on 24 July, 2010
IN THE COURT OF SH. A.K. CHAWLA, ADJ-19 (CENTRAL), DELHI.
Execution No. 15/09
Hari Singh (deceased) ...... Decree Holders
through LRs
Versus
Madan Lal & Ors. ..... Judgment Debtors
ORDER
Vide this order, I proceed to dispose of the objections filed by non-JDs to the execution U/s 47 and purportedly U/o 21 R.58 R/W Sec. 151 CPC.
2. Objections filed, are as follows :
(I) That the decree dated 12.12.07 is ambiguous, null & void & hence can not be executed.
(II) That the Site Plan along with Execution is fabricated and forged. It does not show correct and actual position at the spot. Hence the site plan cannot be relied upon for the purpose of execution.
(III) That the original JDs have already left the premises and they are residing in the separate premises on rent.
(IV) That the present execution cannot be executed against non-JDs. They were never impleaded in the main suit for possession. They were residing in suit premises, when the suit was originally filed by the Decree Holder. Hence the present objectors cannot be dispossessed from their residence, which they occupied sine after childhood. Their names with age are detailed below :Ex.No.15/09 Page 1/5
(a) Smt. Beena W/o Madan Lal age-46 yrs.
(b) Rajeev S/o Madan Lal age-27 yrs.
(c) Raj Kumar S/o Madan Lal age-26 yrs.
(d) Reena Devi W/o Vijay Kr. age-40 yrs.
(d) Arun S/o Vijay Kumar age-22 yrs.
(V) The claim of the Decree Holder cannot be satisfied as the Decree does not specify the area which the Decree Holder wants to get through execution hence the execution may be dismissed.
PRAYER In view of the above said Objection, the present execution may be dismissed as not maintainable Sd/-
Beena Devi Reena SUBMITTED BY :
DELHI. Sd/-
DATED : 19.02.2010 (G.S. JUGTI)
ADVOCATE FOR THE J.Ds"
3. In the reply filed, the DH while denying the assertions and the allegations made in the objections, has taken the preliminary objections viz. Objections have come to be filed by wife of JD Madan Lal and his two sons (objector Nos.1 to 3) and wife of JD Vijay Kumar and his son (objector Nos.4 &
5), after their predecessors namely Madan Lal and Vijay Kumar, lost the first round of litigation upto the Hon'ble Supreme Court and the undertakings came to be given by them that they would handover the vacant possession of the premises in question to the decree holders. Also, according to the decree holders, they were also directed to pay damages @Rs.500/- p.m. till the date of handing over the possession but instead of complying with the undertakings given by them, the said JDs in collusion with the other Co-JDs as well as the present objectors, have filed the present objections with malafide intention to camouflage the orders of the Hon'ble Supreme Court as also the undertakings given by them before the Hon'ble Supreme Court and delay the delivery of possession of the property in question to the decree holders. Also, according to the decree holders, the objectors were fully aware of the pendency of the first round of litigation with Ex.No.15/09 Page 2/5 their respective JDs namely Madan Lal and Vijay Kumar but they never came forward to assert their title in the property nor came forward to join the first round of litigation, out of which the present execution had arisen and were therefore, precluded from claiming any kind of right, title, interest, claim or objection. Also, according to decree holders, as per the implied admissions of the objectors, they were unlawful transfrees of possession after passing of the decree against the JDs and being the family members of the JDs, were bound by the orders passed by the Hon'ble Supreme Court against their predecessors/JDs.
4. No rejoinder came to be filed by the objectors.
5. I have heard the ld. Counsel for the objectors and the ld. Counsel for the decree holders and perused the record carefully.
6. Deviating from the normal course, I have reproduced, in effect, the entire objections in question. I was constrained to do so, as I was unable to gather from the objections as to who actually is the objector. While the objections are purportedly by 'non-JDs', the counsel has signed the objections as the counsel for the 'JDs'. Then, as per the averments made in para-4 of the objections, there seem to be five objectors, objections are signed by only two persons, who signed as Beena Devi and Reena purportedly, whose names appear at (i) and (iv) in para-4 of the objections. Be that as it may, while the objectors and their counsel by themselves do not seem to be very clear of their position, the admitted position is that the objectors are none else but the wives and the children of two of the JDs. In what capacity and since when, the non-JD objectors started residing in the suit premises, is no where disclosed in the objections. When did the husbands and the respective fathers of the other objectors left the suit premises and started residing in a separate premises on rent, the objections are equally silent. There is not even an iota of averment in the objections that the objectors, at any point of time have had any independent right in the suit premises. Interestingly, I observe that the suit for possession, the decree passed wherein is sought to be executed now, was filed in September, 1989. In other words, about 21 years before, when, as per the Ex.No.15/09 Page 3/5 averments made in para-4 of the objections, the objector Smt. Beena Devi W/o JD Madan Lal would have been aged about 25 years; objector Rajiv S/o JD Madan Lal would have been aged about 6 years; objector Ram Kumar S/o JD Madan Lal would have been aged about 5 years; objector Reena Devi W/o JD Vijay Kumar would have been aged about 19 years; and objector Arun S/o JD Vijay Kumar would have been aged about 1 year only. Their relationship and the ages at the time of institution of the suit by itself, especially when, in the objections filed, there is no even iota of any averment of their any independent right in the suit premises, leaves no doubt that they have been living in suit premises only as the family members of JD Nos. 1 & 2. Mere possession is not sufficient to resist or obstruct the decree of possession. Assuming, the JDs left the suit premises and started residing separately on rent leaving behind their family member in the suit premises, it ipso facto does not invest their family members with any legal right in the suit premises. In any case, they could not have invested their family members with any right better than they have had. Suit of the decree holder is decreed on the premises that they had no right. When that is so, they have equally to quit alike JDs. Objections raised by the non-JDs to the contrary are therefore, rejected. Though, Sh. Bhalla, Ld. Counsel for the DH placing reliance upon AIR 1998 SC 1754 Silverline Forum Pvt. Ltd. Vs. Rajiv Trust; 1976 Rajdhani Law Reporter 382 Jagdish Lal Vs. M.E. Periera etc.; and 2009 Rajdhani Law Reporter 338 (SC) Sardar Estaes Vs. Atma Ram properties (P) Ltd. contended that the objections were hit by Sec.52 of Transfer of Property Act and Rule 102 of Order 21 CPC, which pertain to transfer of the property during the pendency of the suit, in other words, transfer pendente lite, I consider that in the absence of any averment in the objections to any such factual conspectus, invocation of such provisions in the instant, case is uncalled for.
As regards the site plan of the suit premises, in relation whereof, the decree is sought to be executed, it is not disputed to be incorrect. Averment in para-2 of the objections that it does not show correct and actual position at the spot, suffice to say, the decree shall be executed in terms of the decree only. Any plea contrary thereto, cannot be entertained, when the decree has attained finality. For the similar reasons, the averments made in para-5 of the objections that decree Ex.No.15/09 Page 4/5 does not specify the area, is inconsequential inasmuch as, the decree can be executed as per the delineated boundaries.
In my considered view, the objections are frivolous and are filed by the family members of the JDs with an apparent motive to delay and frustrate the decree, despite undertakings given by the JDs before the Hon'ble Supreme Court.
7. In view of the foregoing, the objections are dismissed with costs of Rs.10,000/- (Rupees Ten Thousand only), out of which Rs.5,000/- shall be deposited with DLSA.
Announced in the open Court (A.K. Chawla)
on 24th day of July, 2010 Addl. Distt. Judge -19 (Central)
Delhi.
Ex.No.15/09 Page 5/5