Delhi District Court
Smt. Shalu Rana vs Sh.Zishan Son Of Sh.Mukim Ahmad on 5 December, 2012
IN THE COURT OF SH. REETESH SINGH
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST)
KARKARDOOMA COURTS, DELHI
CS No.234/2011
Date of Institution of Suit : 10.1.2011
Date on which Reserved for Judgment : 21.11.2012
Date of Judgment/Order : 05.12.2012
Case I.D. Number : 02402C0006792011
IN THE MATTER OF:-
SMT. SHALU RANA
WIFE OF SH.VIJAY KUMAR RANA
RESIDENT OF F-105/1, DILSHAD COLONY,
DELHI 110 095
.....PLAINTIFF.
VERSUS
1. SH.ZISHAN SON OF SH.MUKIM AHMAD
RESIDENT OF F-121, DILSHAD COLONY,
SHAHDARA, DELHI 110 095
2. SH.GAGAN JAIN SONOF SH. MUKESH JAIN
RESIDENT OF 484/F-1 SHALIMAR GARDEN EXTENSION
SAHIBABAD, DISTT GHAZIABAD (UP)
3. SH. RAJIV SHARMA SON OF SH. R.K. SHARMA
4. SMT. KHUSHBU SHARMA WIFE OF SH. RAJIV SHARMA
DEFENDANTS No.3 & 4 RESIDENT OF
F-105/1, DILSHAD COLOY DELHI 110 095
ALSO AT 130, JANTA FLATS,
NAND NAGRI, DELHI 110 095
.......DEFENDANTS.
CS No.234/2011 1/8
ORDER
1. By this order, I shall decide a preliminary issue framed vide order dated 2.2.2011 which reads as under :
"Whether the suit is not maintainable in view of the Order 21 Rule 58 (5) CPC?"
2. The facts of the case for the purpose of this order are that the plaintiff has filed this suit claiming that she purchased flat No.F-105/1, Dilshad Colony, Delhi (herein after referred to as the suit property) by way of registered sale deed registered as document No.1275 in book No.1, Volume no.610 at pages 102-109 dated 18.6.2009 from defendant No.2 - Gagan Jain. It is averred that possession of the suit property was handed over to the plaintiff on the same day and since then she is in physical possession thereof. The plaintiff subsequently got name mutated in the records of Municipal Corporation and installed electricity and water connections in the same in her name. She has also paid the property tax upto date.
3. It is averred that on 6.4.2010, the plaintiff came to know that a compromise decree was passed by the court of learned Addl. Distt Judge, Tis Hazari Court in respect of the suit property, when the Civil Nazir came to the suit premises for delivery of possession. The plaintiff thereafter contacted her counsel who inspected the related court file and came to know that on 24.1.2008, the defendant No.1 in collusion with other defendants filed suit for specific performance against defendants No.3 and 4 in respect of the suit property on the basis of Agreement to Sell dated 11.9.2006 and 6.10.2006. It is averred that the defendants in collusion with each other entered into compromise before the Mediation Center, Tis Hazari Courts, Delhi on 10.9.2009.
4. It is averred that the defendants No.3 and 4 sold the suit property to the defendant No.2 by registered sale document being document No.679 in Book No.1 Volume No.446 at pages 84-90 dated 7.3.2008. The defendants No.3 and 4 were not left with any right in the suit property after the same. It is averred that on the basis of the sale registered sale deed, the plaintiff purchased the suit property from defendant no.2 by registered sale deed dated 18.6.2009.
5. It is averred that after the defendants No.3 and 4 sold the suit property to CS No.234/2011 2/8 defendant No.4, they were not left with any right in the suit property and therefore the compromise date 10.9.2009 was not binding upon the plaintiff. It is averred that defendants no.1, 3 and 4 were aware that the suit property had already been sold on 7.3.12008 to the defendant No.2 but despite the said knowledge, the defendants No.1 and defendant No.3 entered into compromise before the court with ulterior motives. It is averred that on the basis of the settlement before the Mediation Center, the defendants No.1 and 3 were granted compromise decree dated 14.9.2009 from the Court of Sh.Vinod Kumar. Learned Addl. District Judge, Tis Hazari Courts, Delhi. It is averred that the said Court has granted decree on the basis of report of the Mediation Center without considering the legality of the terms of the settlement recorded by the Mediation Center. The said decree was obtained by collusion and by playing fraud upon the court.
6. It is averred that the defendant No.1 filed Execution Application No.69/2010 for execution of the decree dated 14.9.2009 and the plaintiff filed her objections before the said Court. The objections of the plaintiff were dismissed by the Court of Sh.Rakesh Kumar, learned Addl.District Judge, vide order dated 10.12.2010 without deciding the rights of the plaintiff in the suit property. Against the order dated 10.12.2010, the plaintiff filed an appeal bearing Execution FA No.2/2011 before the Hon'ble High Court which was pending. It is averred that the defendants were threatening to take forcible possession of the suit premises and in these circumstances the plaintiff has filed the present suit praying for decree to declare the plaintiff as owner of the suit property; decree to set aside the compromise dated 10.9.2009 arrived at between defendant No.1 and defendant No.3 before the Mediation Center, Tis Hazari Courts Delhi; to declare the decree dated14.9.2009 passed on the basis of the said by the Court of learned Addl.District Judge, as null and void and not binding upon the plaintiff having been obtained by collusion and fraud and decree for permanent injunction to restrain the defendants from crating third party interest in the suit property or forcibly dispossessing the plaintiff from the suit premises.
7. Upon summons being issued, defendant No.1 filed written statement claiming that the plaintiff had concealed material facts. The defendant no.1 has CS No.234/2011 3/8 claimed that he had entered into an agreement to sell with defendants No.3 and 4 on 11.9.2006 for purchasing the suit property for Rs.10,25,000/- out of which the defendant No.1 has paid Rs,.9,25,000/- to them. It is averred that the defendants no.3 and 4 had not executed any registered sale deed in favour of defendant No.1 due to which CS No.268/2008 was filed by the defendant No.1 against defendants No.3 and 4 for specific performance.
8. It is averred that the defendant No.1 came to know that the sale deed was executed in favour of defendant No.2 without any consideration which was brought to the knowledge of the court by moving application dated 9.5.2008 under Order I Rule 10 read with Order VI Rule 17 CPC but the said application was dismissed by the court. The defendant No.1 has averred that during the pendnecy of the suit, he had entered into settlement with the defendants No.3 and 4 who agreed to execute the documents of sale in respect of the suit property in favour of defendant No.1.It is averred that the sale deed executed by defendants no.3 and 4 in favour of defendant No.2 was for a consideration of Rs.4,16,000/-. It is also averred that the decree was passed on14.9.2009, on the basis of report of mediation center dated 10.9.2009. Since the defendants no.3 and 4 did not execute any sale deed in terms of the compromise, the defendant No.1 moved Execution Application No.69/2010 after which registered sale deed was executed by the Civil Nazir of the court of Sh.Rakesh Kumar, learned Addl.District Judge on 18.2.2010.Subsequently bailiff was appointed by the executing Court for delivery of possession of the suit property. During the pendency of the execution proceedings, the present plaintiff filed objections under Order XXI Rule 98 CPC which were dismissed. It is averred that the defendants No.3 and 4 executed the sale deed in favour of the defendant No.2 during the pendency of the suit and therefore the said sale deed was hit by the provisions of section 52 of the Transfer of Property Act. Thus the plaintiff could not claim any title to the suit property. The defendant No.1 has also raised preliminary objection that upon dismissal of the objections of the plaintiff by the executing Court, the present suit was not maintainable.
9. Defendants No.3 and 4 did not appear despite service of summons and were proceeded exparte vide order dated 12.1.2011.On the basis of the written statement CS No.234/2011 4/8 of defendant No.1, this court vide order dated 2.2.2011 framed the aforesaid preliminary issue. Arguments have been addressed by the learned counsel for the plaintiff and learned counsel for the defendant No.1, on the issue.
10. Learned counsel for the defendant No.1 has argued that although issue was framed regarding maintainability of the suit under Order XXI rule 97 to 101 CPC, under Order XXI rule 101CPC, it is provided that all the questions including the question relating to the right, title and interest in the property arising between the parties in proceedings under Rule 97 or Rule 99 CPC shall be determined by the Court dealing with the application and not by separate suit for this purpose. He submitted that the case as set up by the plaintiff in the present plaint was on the basis of his objections raised before the executing Court which by its order dated 10.12.2010 has dismissed the same. He further submitted that the plaintiff has filed an appeal against the said order before the Hon'ble High Court which was pending, In view of the bar contained under Order XXI Rule 101 CPC, the present suit is not maintainable. Learned counsel for the defendant No.1 has relied upon the following case law in support :-
1. Leelavatiben M.Dabhi & Others versus Prakashbhai N Sonagara & Others reported as AIER 2009 (NOC) 661 (Guj)
2. Gram Panchayat Hassanpur versus Jagdish Chand & Others reported as 2007 (4) RCR (Civil) 636
3. Alamelu Ammal versus Chinnaswamy Reddiar reported as AIR 1989 Madras 311
4. Prasantha Banerji versus Pushpa Ashoke Chandani & Others reported as AIR 2000 SC 356 (2)
5. NSS Narayana Sarma & Others versus M/s Goldstone Exports (P) Ltd & Others reported as AIR 2002 SC 251
11. On the other hand, learned counsel for the plaintiff has argued that the present suit was maintainable even though his objections had been dismissed and relied upon the judgement in the case of Smt.Suraj Kumari versus District Judge Mirzapur & Others reported as AIR 1991 Allahabad 75.
12. I have heard learned counsl for the parties and have perused the record. It is CS No.234/2011 5/8 not disputed that the plaintiff has preferred objections under Order XXI Rule 98 CPC in Execution No.69/2010 titled Zishan versus Rajeev Sharma & Others. The said objections have been dismissed by the Ld. Executing Court vide order dated 10.12.2010. The learned Executing Court held that the suit property was sold by the present defendants no.3 and 4 in favour of defendant No.2 during the pendency of CS No.268/20089 filed by defendant No.1.The said sale attracted the provisions of Section 52 of the Transfer of Property Act. Since the CS 268/2008 was disposed of on the basis of compromise deed dated 14.9.2009, all the transferees of the suit property during the pendency of the suit would be bound by the outcome of the same.
13. Defendant No.1 has placed on record certified copy of the objections under Order XXI Rule 98 CPC dated 12.4.2010 filed by the present plaintiff before the executing court in Execution No.69/2010. The plaintiff in her objections has raised the issue of concealment of material facts i.e. sale of the property by defendant No. 3 and 4 in favour of defendant No.2 and subsequently by defendant No.2 in favour of the plaintiff. She has specifically pleaded that the compromise dated 10.9.2009 arrived at before the Mediation Center and the compromise decree dated 14.9.2009 were vitiated by fraud. In other words, the same contentions which were raised by the plaintiff in her objections before the executing Court have been pleaded in the present. The question which arises for consideration before this court is whether in view of the objections having been filed by the plaintiff in the executing Court and the same having been dismissed, the present suit is maintainable.
14. Rule 101 of Order XXI of the Code of Civil Procedure reads as under :-
"101. Question to be determined - 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 to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."
15. In the case of Leelavatiben M Dabhi & Others versus Prakashbhai N Songara & others (supra), it was held by the Hon'ble High Court of Gujarat that all CS No.234/2011 6/8 the objections raised before the executing Court including the one made by a third party are to be decided by the executing Court. In the case of Gram Panchayat, Hassanpur versus Jagdish Chand & Others (supra), the Hon'ble High Court of Punjab & Haryana has held that the objections before the executing Court by a third party are to be tried and adjudicated like an independent suit. In the case of Ala melu Ammal versus Chinnaswamy Reddiar (supra), Hon'ble Allahabad High Court has held the same. In the case of Prasantha Banerji versus Pushpa Ashjoke Chandani & Others (supra) the Hon'ble Supreme Court has been pleased to hold that a suit in respect of the same subject matter of the property filed by a person who was not a party to the decree, after initiation of execution proceedings was not maintainable. It was further held that the objector would be entitled to raise all his contentions before the Execution Court and not by way of a separate suit. In the case of NSS Narayana Sarma & Others versus M/s Goldstone Exports (P) Ltd & Others, the Hon'ble Supreme Court was pleased to hold that all the issues arising during the court of execution proceedings are to be decided by the execution Court and not by a separate suit.
16. Learned counsel for the plaintiff has relied upon the judgment of Hon'ble Allahabad High Court in the case titled Smt.Suraj Kumari versus District Judge Mirzapur & Others (supra), in which it was held that a stranger to a compromise decree passed by the court is entitled to file suit to set aside the compromise decree which affects his rights. A reading of the said judgment reveals that the said judgment was rendered in respect of the provisions of Order XXIII Rule 3A CPC and it was held that the said provision does not bar a stranger to file a separate suit to set aside the compromise decree. The said judgment is not an authority for proposition that the allegations regarding collusive decree could not be raised before the execution Court before whom the alleged collusive decree is sought to be executed.
17. In the case of Kancherla Lakshmi Narayana versus Mallaparthi Syamala & Others reported as (2008) 14 SCC 258, the Hon'ble Supreme Court was pleased to hold that the executing Court can also decide the question whether the decree sought to be executed was a collusive decree or not. It is, therefore, not open for CS No.234/2011 7/8 the plaintiff to contend that since the decree which was sought to be executed before the executing court being collusive decree could not be challenged before the executing Court, and the plaintiff was entitled to maintain separate suit for this purpose. In fact in the case of Prasantha Banerji (supra), the Hon'ble Supreme Court has reiterated that a suit in respect of the same subject matter of property after initiation of execution proceedings, by a person who was not a party to decree was not maintainable. Such person was required to file objections before the executing Court which had the jurisdiction to decide the same.
18. In the present case, during the pendency of the execution proceedings in Execution No.69/2010 arising out of the decree dated 14.9.2009 passed in CS 268/2008, the present plaintiff has filed the objections under Order XXI Rule 98 CPC raising the same contentions as have been raised by her in the present plaint. The Executing Court had the jurisdiction to consider all the contentions of the plaintiff including the contention that the decree sought to be executed was collusive. The said court considered the objections and dismissed the same. The present suit raising the same issue is not maintainable and is barred under the provisions of Order XXI Rule 101 CPC.
19. For the reasons recorded above, the issue framed vide order dated 2.2.2011 is decided in favour of defendant No.1 and against the plaintiff. The suit of the plaintiff is dismissed being barred under Order XXI Rule 101 CPC. File be consigned to the record room.
Announced and dictated to the steno in Open Court today i.e. 6.12.2012 (REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi CS No.234/2011 8/8