Delhi District Court
1/5 Sh. Ramesh Chand Gupta vs . Sh. Samay Singh on 31 August, 2012
ID No.02401C6252842004
IN THE COURT OF SHRI PANKAJ GUPTA : ADDL. DISTRICT
JUDGE (CENTRAL07) : TIS HAZARI COURT : DELHI
Ex. No.33/2008
Sh. Ramesh Chand Gupta .........Decree Holder
versus
Sh. Samay Singh ........Judgment Debtor
O R D E R :
1. By this order, I shall dispose of the application under Order 6 Rule 17 of Code of Civil Procedure, 1908 (CPC) moved by the objector namely Sh. Naresh Sharma (HUF) for amendment of the objection application u/o 21 Rule 99 and 100 of CPC.
2. The decree holder filed reply to the present application and prayed that the same be dismissed.
3. I have heard Ld. counsels for the parties and have perused the material available on record.
4. Brief facts relevant for disposal of the present application are that the decree holder (DH) filed the present execution petition for execution 1/5 Sh. Ramesh Chand Gupta Vs. Sh. Samay Singh of the decree dated 02.05.1990 passed in suit no. 163/1989 (the said suit). In the present execution petition, the objector filed the objection application u/o 21 Rule 99 and 100 of CPC and claimed ownership rights w.r.t. an area admeasuring 2785 sq. yards out of the total area of the land admeasuring 4 Bighas 16 Biswa bearing Khasra no.506, situated at village Naib Sarai, Tehsil Mehrauli, Delhi (the said land). The said objection was dismissed by this court on 27.09.2010. Being aggrieved by the same, the objection preferred an appeal being EFA no. 20/2010 before the Hon'ble Delhi High Court. Vide consent order dated 12.01.2012, the order dated 27.09.2010 was set aside and the matter was remanded back for disposal after giving the opportunities to the parties to lead evidence. Now at this stage, the objector moved the present application.
5. Counsel for the objector pleaded that in the said suit, DH furnished the wrong address of JD and obtained the decree by manipulating reports of process server or by acting incollusion with JD. As such, DH obtained the judgment and decree dated 02.05.1990 by fraud. It is also pleaded that the said facts came to the notice of the objector after filing the objection application on inspection of the record of the execution proceedings. Now to elaborate and substantiate the plea of fraud in connection with furnishing of the wrong address of the JD and the manipulation in the service report of the process server, the objector seeks amendment in para 6 of the application and proposed to incorporate paras no. 6A to 6E. On the other hand, counsel for the DH strongly opposed the said application and prayed for its dismissal.
6. The question arises whether the proposed amendments if allowed would change the nature of the objection application filed by the 2/5 Sh. Ramesh Chand Gupta Vs. Sh. Samay Singh objector or not.
7. In the objection application, the objector raised various pleas to establish its right and ownership over the said land. In para 5 of the said objection, the objector pleaded the facts as to how it came to know about the said suit and the decree passed therein. It was pleaded that counsel for the objector inspected the record on 23.04.2009 and came to know that JD was proceeded exparte on the basis of the refusal report of the process server and thereafter exparte decree was passed on 02.05.1990. In the application, it was nowhere pleaded that DH furnished the wrong address of JD in the said suit and the said refusal report was wrong and/or was got manipulated. In para 6 of the application, it was pleaded that the objector was totally stranger to the said suit and had purchased the said land bonafidely from the erstwhile owner. As such, the objector took the plea of bonafide purchaser and claimed that being stranger to the said suit, it was not bound by the said decree. Hence, in the objection application, the objector has not challenged the sustainability of the decree on the basis of any deficiency in service and/or service report of JD. Now vide the present application, the objector intends to take up a plea to challenge the decree itself on the basis that it was obtained by fraud by furnishing the wrong address of JD and manipulation of the service report. In view of the foregoing discussions, the objector intends to take a new plea altogether. Hence, if the objector is allowed to do the same, it will amount to allowing the objector to withdraw from its stand that he was satisfied with the service report and/or service of JD in the said suit and the decree passed therein. But it cannot be allowed to so by way of the present application.
8. Regarding the objector's knowledge to the said facts, in the 3/5 Sh. Ramesh Chand Gupta Vs. Sh. Samay Singh present application, it is pleaded that the said facts came to the notice of the objector after filing the objection application on inspection of the record of the execution proceedings. The objector filed the objection on 24.04.2009. It is the own case of the objector that it filed the same after inspection of the court record. The objection application was hotly contested by the parties and was dismissed on 27.09.2010. As discussed above, the objector challenged the said order before the Hon'ble Delhi High Court and the said appeal was disposed of vide consent order dated 12.01.2012. Till filing of the present application, the objector has not taken the said plea. The applicant has not mentioned the date of said inspection. But it can be held that as per the applicant's own case, the alleged inspection must have been done after passing of the order dated 12.01.2012. Hence, it can be held that before 12.01.2012, the objector was aware of the said facts and they came to its knowledge only after 12.01.2012. Now the question arises whether the said plea of the applicant is true or false.
9. Perusal of the record reveals that in the present execution petition, one Sh. Yogender Kumar and Sh. Om Kumar also filed the objection application u/o 21 Rule 97 of CPC which was also dismissed on 27.09.2010. Being aggrieved by the same, the said objectors preferred an appeal being EFA no. 18/2010 before the Hon'ble Delhi High Court. Vide order dated 05.07.2011 passed by the Hon'ble Delhi High Court, the said appeal was allowed. In the said objection application as well as the appeal, the objectors therein raised a plea regarding service of JD and alleged fraud played by DH in the said suit. Both the said objections were filed and argued by the different counsels but the same were argued together and were disposed of by the common order dated 27.09.2010. Present counsel for the objector also represented and argued the matter for it at that stage. As such, it can be held 4/5 Sh. Ramesh Chand Gupta Vs. Sh. Samay Singh that the present objector as well as its counsel was well aware of the service report of JD in the said suit and pleas raised by the other objectors to that effect. Not the least, the present counsel also represented and argued the appeal preferred by the other objectors/ the appellants in EFA no. 18/2010 though he was not the counsel for them at that before this court and raised the same plea as raised in the present application. The appeal EFA no. 18/2010 was disposed of on 05.07.2011. Thereafter, the present counsel also argued the appeal being EFA no. 20/2010 for the present objector also and the same was disposed of on 12.01.2012. Order dated 12.01.2012, no where reveals that the objector raised the said plea or sought liberty to raise the said plea before this court. Hence, it can be held that counsel for the objector was well aware of the service report of JD in the said suit and the pleas available to it well in advance but has not raised the same. As such, the same stands waived. Now at this stage, the objector cannot be allowed to raise the plea that it was not aware of the said pleas earlier. Therefore, there is no substance in the plea raised by the objector to this effect.
10. In view of the foregoing discussions, I am of the opinion that the application is devoid of merits. Therefore, the application is dismissed.
Announced in the open court, (PANKAJ GUPTA)
On 31st day of August, 2012. ADJ(Central07)/DELHI
31.08.2012
5/5 Sh. Ramesh Chand Gupta Vs. Sh. Samay Singh