Delhi District Court
Sh. Purshottam Dutt Sharma vs Shri Bal Dev Raj on 20 March, 2017
IN THE COURT OF SH. DEEPAK SHERAWAT, JSCC-CUM-
ASCJ-CUM-GUARDIAN JUDGE (WEST): DELHI
MCA No. 307/16
Unique Case I.D. No. 02401C0480622013
Sh. Purshottam Dutt Sharma
S/o Sh. Ram Kishan
R/o N- 54A, Lane W-17/M,
Sainik Farms (South), New Delhi-52. .....Appellant
versus
1. Shri Bal Dev Raj
S/o Late Sh. Wadhaya Ram
R/o 13/85-86, Dakshinpuri Extension,
New Delhi.
2. Shri Om Prakash
S/o Shri Shiv Dutt Rai
R/o B-56, Duggal Colony,
Khanpur, New Delhi.
3 (a) Shri Ram Sarup Chaudhary
(b) Shri Satish Kumar
Both sons of Late Nihal Chand
Both R/o D-175, Krishna Park,
Khanpur, New Delhi.
4 (a) Shri J. P. Gupta
S/o Late S. C. Gupta
R/o D-38, Duggal Colony, Devli Road,
Khanpur, New Delhi-62.
(b) Shri Kishan Chand
S/o Sh. Parsa Mal,
R/o F-96, Jawahar Park, Devli Road,
Khanpur, New Delhi.
MCA No. 307/16 Page no.1/6
5 (a)Shri Ajay Gupta
(b)Shri Manish Gupta
Both are sons of Sh. Jai Kishan Gupta
Both R/o D-219, Krishna Park,
Khanpur, Devli Road, New Delhi.
6 (a)Smt. Bimla Devi Jain
W/o Late M. L. Jain
(b) Shri Paras Jain
S/o Late Sh. M. L. Jain
Both are residents of ;
D-372, Krishna Park, Devli Road,
Khanpur, New Delhi-62.
7 (a) Shri Maninder Singh
S/o Sh. Raminder Singh
(b)Mrs. Harjit Kaur
W/o S. Raminder Singh
Both are residents of :
A-2/285, 2nd Floor,
Janakpuri, New Delhi -58.
8. Shri Ashish Khurana
S/o Subhash Chander Khurana
R/o C-42, Duggal Colony, Devli Road,
Khanpur, New Delhi-62.
9. Shri Pankaj Kumar Jain
S/o Sh. Prem Chand Jain
R/o C-41, Krishna Park, Devli Road,
Khanpur, New Delhi-62.
10. Shri Nawab Khan
S/o Shri Mehtab Khan
R/o F-98, Jawahar Park, Devli Road,
Khanpur, New Delhi-62. ...... Respondents
Date of filing of the Appeal : 21.09.2013
Date of reserving order : 16.03.2017
Date of pronouncement : 20.03.2017
MCA No. 307/16 Page no.2/6
ORDER
1. This is an appeal arising out of a order dated 05.08.2013 passed by Ld. Trial Court whereby the objections filed by the objector in the execution petition were allowed.
2. The DH herein had filed a suit for cancellation of sale deed dated 14.02.1984 and for recovery of possession of the land measuring 13 bighas out of khasra no. 483, situated in Village Khampur, Tehsil Mehrauli, Delhi (hereinafter referred to as suit property). The case was that the DH had executed a GPA in favour of JD no. 2 to manage the affairs of the suit property but the said GPA was revoked on 01.02.1984 but despite the revocation, JD no. 2 executed a sale deed of the suit property in favour of JD no. 1 and subsequently, they forcibly dispossessed the DH from the suit property. DH filed a suit against the JDs which was decreed in his favour on 23.08.2007 and a decree of possession was passed in his favour. The DH filed the present execution petition for possession of the suit property and the respondents filed objections and they claimed to have purchased the suit property from one Sh. Shyam Gopal, who was claimed to have purchased it from one Sh. R. K. Puri. They also claimed to be in possession of the suit property. The DH in his reply contended that Sh. R. K. Puri had sold a large chunk of land the DH, Sh. Shyam Gopal, Sh. Ram Chand Kathuria and Sh. Gulshan Pahwa. It was further contended that the portion in which the objectors were claiming their rights was actually the property of the DH.
MCA No. 307/16 Page no.3/63. Vide impugned order, Ld. Trial Court held that none of the objectors was claiming title to the property through the DH and they were claiming their title through Sh. Shyam Gopal. It has been further observed by Ld. Trial Court that the objectors were not claiming right over the suit property through any of the JDs and they were claiming their independent title and therefore, their objections cannot be adjudicated in the present execution proceedings and the Court cannot execute decree against objectors because they were not claiming their right through defendants and Ld. Trial Court allowed the objections and held that decree cannot be executed against the objectors.
4. The present appeal has been filed on the ground that Ld. Trial Court has wrongly held that the objections cannot be decided in execution petition by presuming that the objectors were claiming their independent title over the suit property. It is further stated that Ld. Trial Court has wrongly held that the executing court cannot execute decree against objectors and objections should have been decided on the basis of pleadings and documents on record.
5. I have heard arguments and perused the record.
6. Order 21 Rule 97 of CPC lays down that when any obstruction or resistance is made to the execution of the decree by the DH by any person, who is in possession of the property, the DH can make application to the Court in respect of such resistance and obstruction and the Court shall decide the application in terms of provision of Rule 101 of Order 21 CPC. Order 21 Rule 97 CPC conceives of resistance or MCA No. 307/16 Page no.4/6 obstruction to the possession of the immovable property in execution of the decree by any person, such person need not be the person bound by the decree and he may be person claiming independent right of his own and such person may include even a stranger. Under Rule 101 of Order 21 CPC, the executing court when deciding the application of the DH to the obstruction or resistance shall adjudicate upon the claim of the applicants which shall include all questions relating to right, title or interest in the property arising between the parties. In other words, the parties are not required to file a fresh suit and all the matters pertaining to the property and arising between the parties under Order 21 Rule 97 CPC shall be determined by the Court and not by separate suit. Under Order 21 Rule 101 CPC, all the disputes between the DH and any person claiming right to the property are to be adjudicated by the Executing Court and the parties need not file a separate suit. Under the old law before the amendment of 1976, by virtue of Rule 103, if any order was passed against the person resisting the possession, he had to file a separate suit to establish his right but after the amendment, the disputes are to be settled by the Executing Court under Rule 101 CPC. Hon'ble Supreme Court has expressed similar views in "Shreenath & Anr. Vs Rajesh & Ors., AIR 1998 SC 1827".
7. Therefore, Ld. Trial Court has wrongly held that the objections cannot be decided in the execution proceedings as the objectors were not claiming their rights through JDs and they were claiming independent right. The objections are decided by the Executing Court itself.
MCA No. 307/16 Page no.5/68. Considering the facts and circumstances and the material placed on record, the impugned order is set-aside and the matter is remanded back to Ld. Trial Court to decide the objections and hearing arguments. Accordingly, the appeal is hereby allowed and disposed of.
9. TCR be sent back with the copy of this order.
10. Appeal file be consigned to Record Room.
Announced in the open Court today the 20th March 2017 (DEEPAK SHERAWAT) JSCC-cum-ASCJ-cum Guardian Judge (West), Delhi 20.03.2017 MCA No. 307/16 Page no.6/6