Jammu & Kashmir High Court - Srinagar Bench
Noor Ud Din Matoo vs Haji Mohammad Shaban Ganai And Ors on 7 June, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CFA No. 73/2011
Reserved on:- 30.01.2018
Pronounced on :- 07.06.2019
Noor ud Din Matoo
Petitioner(s)
Through:- Mr. M. A. Qayoom, Advocate
Vs.
Haji Mohammad Shaban Ganai and Ors.
Respondent(s)
Through:- Mr. N. A. Kuchai, Advocate.
CORAM:-
Hon'ble Mr. Justice Rashid Ali Dar, Judge.
Whether to be reported in press/Media: Yes/No
Whether to be reported in Digest/Journal: Yes/No
(JUDGMENT)
1. This Civil First Appeal has been filed by the appellant against the judgment and decree (dated 16.07.2011) passed by the Court of learned Principal District Judge, Budgam in File No. 03/N (for short impugned judgment and decree) in case titled " Noor-ud-Din Mattoo v. Haji Mohammad Shaban Ganai and Others. "
2. A brief account of facts and grounds, in which the appeal is stated to have filed is:
(i) That by virtue of a sale deed executed on 28.11.2006 and registered on 25.01.2007, the appellant purchased a piece of land measuring 02 kanals covered by survey Nos. 361/124 situate at Baghat Kanipora, Tehsil Chadura, from respondent No. 3. Before CFA No. 73/2011 Page 1 of 28 executing sale deed, the appellant obtained extracts of Jamabandi and Girdawari from the Patwari concerned on 31.10.2006, which indicated that the aforesaid land had been purchased by respondent No. 3 from respondent No. 4 and a mutation No. 111 had also been attested by the revenue officials, on the basis of the said sale deed, in favour of respondent No. 3. It was, however, nowhere mentioned in the revenue extracts aforesaid, issued by the Patwari concerned and attested by Tehsildar Chadura on 31.10.2006 that the land was either subject matter of any site or else there was any kind of proceedings going on in respect of the said land before any Court of law. A copy of sale deed, revenue extracts of Jamabandi and Girdawari and also a copy of Aksi Shajra Kashtiward of land issued by Patwari concerned on 31.10.2006, along with the site plan prepared by Amin Adalat are annexed with the appeal (as Annexures A, B, C, D & E).
(ii) That after the execution of the sale deed dated 28.11.2006, the appellant also got a mutation attested in respect of the aforesaid land from the concerned revenue officials under No. 374, in his name, which is also reflected on the first page of the sale deed, annexed with the petition (as annexure A).
(iii) That ever since from the date of execution and registration of the sale deed and attestation of mutation No. 374, the appellant has been in possession of the land and no one has ever caused any kind of interference with his possession over the said land, in any manner whatsoever. The land has not been fenced by the appellant as yet, but for purpose of identification, angle iron poles have been put by him on all the four sides of the land, which fully indicate its identification and demarcation.
(iv) That it was, however, on 24.06.2008 that the appellant was informed by the Patwari concerned that the Court of learned Principal District Judge, Budgam, has passed a decree in a case instituted by respondents 1 and 2 against respondents 3 and 4 in the said Court, in respect of the land of the appellant and that the Nazir of the Court has come on spot to give possession thereof to the respondents 1 and 2. The appellant immediately rushed to the spot and found that the Nazir had left the place, because the respondent No. 3 had not come on spot. The appellant thereafter went to the Court of learned Principal District Judge, Budgam, and after making necessary enquiries, found that a suit for enforcement of Right of Prior Purchase had been filed by the CFA No. 73/2011 Page 2 of 28 respondents 1 and 2 against respondents 3 and 4 in the Court of learned Principal District Judge, Budgam on 05.04.2004, in which they had alleged that the respondent No. 4 had sold a parcel of land measuring 2 kanals covered by survey Nos. 361/124 to the respondent No. 3 by virtue of a sale deed executed on 21.05.2005 for a consideration of Rs. 60,000/- and the said sale deed which was registered by the Sub-Registrar on 28.05.2005 should be cancelled because respondents 1 and 2, who are co-shares of the respondent No. 4, had executed the sale deed at their back.
(v) That it appears that an Advocate had appeared on behalf of respondent No. 3 in the Court on 30.11.2005 and had prayed for adjournment for filing power of attorney and written statement.
On 10.12.2005, he again sought time for filing written statement, which was granted subject to payment of Rs. 50/- as costs and it was directed that the respondent No. 4 be again summoned. From the perusal of the order dated 22.12.2005, it transpires that the learned counsel for the respondent No. 3 again sought adjournment for filing written statement, which was granted to payment of Rs. 70/- as costs. The respondent No. 4 also appeared in the Court in person on the said date, but on the subsequent date which was fixed on 08.03.2006, he was absent, as such, ex-parte proceedings were initiated against her and the file was kept for appearance of respondent No. 3. The record also reveals that on 04.04.2006, counsel for the respondent No. 3 stated at the bar that he had no instructions for appearing on behalf of respondent No. 3, as such, he was again re-summoned and finally ex-parte proceedings were initiated against him on 03.07.2006, as he again failed to appear before the Court. The respondents 1 and 2 thereafter deposited 1/5th of the consideration amount and also produced evidence in ex-parte, as a result of which, the suit was decreed by the Court in ex-parte in favour of respondents 1 and 2 and against respondent 3 and 4 and they were also substituted as vendees in the sale deed executed by respondent No. 4 in favour of respondent No. 3 and the possession of the suit land was ordered to be delivered by the respondent No. 3 to respondents 1 and 2, who were also directed to deposit the remaining amount of the sale consideration. It was also directed that after depositing the remaining consideration amount, decree sheet be drawn up accordingly. A copy of the judgment and decree dated 04.10.2006 CFA No. 73/2011 Page 3 of 28 showing the aforesaid position are annexed with the appeal (as annexure-F).
(vi) That after obtaining the ex-parte decree from the Court of learned Principal District Judge, Budgam on 04.10.2006, the respondents 1 and 2 filed an execution petition in the executing Court on 07.06.2008 and the Court passed an order therein, directing the Nazir to go on spot and deliver the possession of the suit scheduled immovable property to the decree holders and report compliance by next date, which was fixed on 24.06.2008. A copy of the order dated 10.06.2008 is annexed herewith (as annexure- H).
(vii) That in the light of the report submitted by Nazir on 16.06.2008, indicating that the suit land is situated at Baghat Kanipora and the field staff for that area are posted in Munsiff Court Chadura under the supervisory control of Nazir, Munsiff Court, Chadura, therefore, it was difficult for him to avail their services and that it needs to be specifically mentioned in the warrant the name of person under whose occupancy, the suit land is at the moment. The learned Principal District Judge, Budgam, issued a delivery warrant to the Nazir on 19.06.2008, asking him that he should obtain possession of the suit land from respondents 3 and 4 and handover the same to respondents 1 and 2 and submit a report thereof to the Court before 24.06.2008. A copy of the delivery warrant addressed by the Court to the Nazir is annexed herewith (as annexure-J).
(viii) That since the appellant had purchased the land in dispute in terms of sale deed executed and he was not a party to the suit filed by respondents 1 and 2 against respondents 3 and 4, therefore, he had no option but to challenge the judgment and decree dated 04.10.2006 before the Court of learned Principal District Judge, Budgam. Accordingly, the suite came to be filed by him on 26.06.2008 in the said Court for grant of the following relief:
"In the premises, it is therefore, prayed that:
(a) By issuance of a declaratory decree, the judgement and decree dated 04.10.2006, passed in the suit titled Haji Mohammad Shaban Ganai & Another v. Nazir Ahmad Zargar and Another, passed by learned Principal District Judge, Budgam, be declared null and void and legally non-est and also inoperative and inconsequential against the rights and interests of the plaintiff.CFA No. 73/2011 Page 4 of 28
(b) By issuance of a perpetual/mandatory injunction, defendants be directed not to deprive the plaintiff of the ownership of land measuring two kanals covered by survey No. 361/124 situated at Baghat Kanipora or of the possession of the suit land on the basis of the impugned judgement and decree dated 04.10.2006, but to refrain from causing any interference with his ownership and possession of the suit land, in any manner whatsoever.
(c) The Hon'ble Court may pass any other order or decree which it may deem fit and proper under the facts and circumstances of the case."
(ix) That along with the suit, the appellant filed an application for staying the operation of the impugned judgment and decree dated 14.10.2006 and also direct the respondents no to deprive the appellant of the ownership of the suit land on the basis of the impugned judgment and decree dated 14.10.2006 and to refrain from causing any interference with his possession over the suit land, in any manner whatsoever. The appellant also filed an application for appointment of commissioner before the Court below with a direction to visit the spot and report about the factual position obtaining there. A copy of the suit is annexed herewith as Annexure-J1.
(x) That in terms of order dated 02.07.2008, the trial Court directed the Nazir to stop further proceedings in pursuance of the order issued by it in the execution petition and also appointed a Commissioner with the direction to go on spot and report back about the existing position vis-à-vis the possession on spot. A copy of the order dated 02.07.2008 is annexed herewith as Annexure-K.
(xi) That after causing appearance before the trial Court, the respondents 1 and 2 filed two applications. One application was filed in terms of Order 21 Rule 97 CPC for putting them in possession of the property and second application was filed in terms of Order 7 Rule 11 of CPC for rejecting the plaint.
(xii) That after taking objections of the appellant on record against both these applications, the trial Court in terms of its order dated 07.09.2009, dismissed the application of the respondents 1 and 2 moved under Order 7 Rule 11 CPC on the ground that the said application was legally misconceived. A copy of the order dated 07.09.2009 is annexed herewith as annexure-L. CFA No. 73/2011 Page 5 of 28
(xiii) That aggrieved by the order dated 07.09.2009, the respondents filed Civil Revision No. 166/2009 before the Court which came to be decided in terms of order dated 11.04.2011 and while setting aside the impugned order dated 07.09.2009, the Court directed the trial Court to decide the application filed by the respondents afresh. A copy of the order dated 11.04.2011 is annexed herewith as annexure-M.
(xiv) That after receiving the order dated 11.04.2011 from the Court, the trial Court heard arguments afresh in the matter and in terms of its judgment and decree dated 16.07.2011 held that a separate suit on the subject in question is not maintainable under Order 7 Rule 11 CPC read with Rule 101 CPC and the successive rules of Order 21 CPC, therefore, the suit is barred and not maintainable at all. The suit was accordingly dismissed as not maintainable and office was directed to prepare a decree sheet accordingly. The execution petition was also directed to come up separately for further proceedings on 20.08.2011. A copy of the judgment and decree dated 16.07.2011 is annexed herewith as annexure-N.
(xv) That the appellant is aggrieved of the judgment and decree dated 16.07.2011, and he challenged the same amongst other grounds on the following:
(a) That the application filed by respondents 1 and 2 under Order 7 Rule 11 CPC was grossly misconceived, both on fact and law, as such, it was liable to be dismissed. The trial Court having, however, held otherwise, therefore, the impugned judgment and decree is liable to be set aside.
(b) That the land in respect of which suit came to be filed by the appellant had been validly purchased by him on execution of a sale deed, where-after mutations were attested in the relevant records. The fact of filing of the suit for preemption and passing of decree was not, however, known to the appellant at the time of execution of the sale deed. There was also no mention in the revenue documents obtained by the appellant from the Patwari concerned for effecting sale of the land. In that view of the matter, anything done at the back of the appellant in a case, in which he was not a party, was not binding on him. Consequently the suit filed by the appellant was, therefore, legally maintainable. The trial Court having held otherwise, therefore, the impugned judgment and decree is liable to be set aside.CFA No. 73/2011 Page 6 of 28
(c) That the trial Court has stated in the impugned judgment that the suit of the appellant was not maintainable as per Order 7 Rule 11 CPC read with Rule 101 CPC and the successive rules of Order 21 of CPC. Order 21 Rule 101 of the CPC provides that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding 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 law for the time being in force be deemed to have jurisdiction to decide such question. Rule 97 and 99 of Order 21 CPC, however, apply to a case when the holder of the decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree, is resisted or obstructed by any person in obtaining possession of the property, that he can make an application to the Court complaining of such resistance of obstruction. Rule 99 of Order 21 provides that when a person other than the judgment debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or where such property has been sold in execution of a decree, by the purchases thereof, he can make an application to the Court, complaining of such dispossession.
A plain reading of the aforesaid provisions of law would amply demonstrate that these provisions of law were not applicable to the case of the appellant inasmuch as, he had purchased the land in terms of a valid sale deed and had got mutation also attested in his favour from the concerned revenue agency and had no knowledge that an ex-parte decree was passed by the trial Court in a suit, to which appellant was not a party. All these aspect of the matter have not been considered by the trial Court while passing the impugned judgment and decree. Consequently the impugned judgment and decree passed by the trial Court is liable to be set aside.
(d) That it is well settled proposition of law that a judgment and decree passed by a Court is not binding on a person who is not a party to the case. It may be binding on a person who is party to the case or on his successors-in-interest, but a person who has an independent right and has not been arrayed a party to the case by CFA No. 73/2011 Page 7 of 28 the person concerned, is not bound by the judgment and decree passed in that case. In the instant case also, the appellant was not a party to the case in which ex-parte judgment and decree was passed by the Court and, therefore, he had an independent right of calling the ex-parte judgment and decree in question by filling a separate suit. Order 21 Rule 101 CPC did not apply to his case at all, because in his independent right, the appellant was entitled to file a separate suit. The trial Court having not under stood the contention of the appellant in its correct perspective and it having allowed the application of the respondents for dismissing the suit under Order 7 Rule 11 CPC, therefore, the impugned judgment and decree is liable to be set aside.
(e) That while passing the impugned judgment and decree, the trial Court has not considered report of the commission who had visited the spot in pursuance of the orders passed by the Court on 02.07.2008. The impugned judgment and decree, therefore, suffers from error of jurisdiction and consequently same is liable to be set aside.
(f) That for all the reasons stated hereinabove and to be stated at the time of hearing of the appeal, the impugned judgment and decree dated 16.07.2011, is liable to be set aside.
(XVI) That the appeal is valued at Rs. 1,00,000/- and the Court fee as paid in the suit, is paid in the appeal as well.
(XVII) In the end, it has been prayed that this appeal be accepted and the impugned judgment and decree dated 16.07.2011 passed by the trial Court (Principal District Judge, Budgam) be set aside and the Court below be directed to proceed with the case in accordance with law.
3. Record has been called for perusal. Perusal of the same reveals that a suit for declaration and injunction had been filed by the appellant herein before the Court of learned Principal District Judge, Budgam. The said Court after taking an overall view of the suit, dismissed the same as not maintainable
4. The record of execution petition has not been however called. It is being submitted that the executive proceedings are pending before the learned Principal District Judge. Conclusion has been drawn by the learned Principal District Judge in terms of the impugned judgment and decree that separate CFA No. 73/2011 Page 8 of 28 suit on the subject in question is not maintainable as per under Order VII Rule XI CPC read with Rule 101 CPC and the successive rules of order 21 CPC. Accordingly the present suit is held to be barred and not maintainable at all. The suit has accordingly been dismissed by the learned trial court after noting the development, referred hereinabove about the litigation (reference of the judgment passed by this court in Civil Revision No. 166/2009 on 11- 04-2011). Reliance has been placed by respondents on judgment titled Nooruddin Vs. Drf. K. L. Anand (1995) 1 SCC 242, Smt Usha Jain and Ors. Vs. Manmohan Bajaj and Ors. AIR 1980 Madhya Pradesh 146 (Full Bench) and Fatima Automobiles Vs. P. K. P. Nair and another AIR 1985 Madras
318. Reference has also been made of Section 35 Rule 97, 98, 99, 100, 101, 102, 104 CPC.
5. It may also be proper herein to refer the application bearing No. CMP No. 277/2013 presented during the pendency of the appeal by the appellant herein. Some of the pleas taken in the application are that :
i) That the appellant had purchased a piece of land measuring 02 kanals covered by Survey No. 361/124 situated at Baghati Kanipora Tehsil Chadoora from respondent No. 3 in terms of sale deed executed on 28.11.2006 and registered on 25.01.2007.
ii) That at the back of the appellant and without his knowledge, the respondent No. 1 and 2 had filed a suit for re-enforcement of right of prior purchase in respect of the aforesaid land in the court of Principal District Judge, Budgam.
iii) That the suit was decreed by the Principal District Judge, Budgam in exparte on 4.10.2006 and the possession of the land was ordered to be delivered by respondent No. 3 to respondents 1 and 2 who were also CFA No. 73/2011 Page 9 of 28 directed to deposit the remaining amount of sale consideration.
iv) That after passing of the exparte judgment and decree dated 04.10.2006, the respondents 1 and 2 filed an execution petition in the executing court on 7.6.2008 which directed the Nazir to go on spot and deliver the possession of the suit scheduled immovable property to the decree holders and report compliance thereof by the next date of hearing.
v) That on coming to know about the exparte decree, the appellant filed a suit for declaration and injunction in the court of Principal; District Judge, Budgam for declaring the judgment and decree dated 4.10.2006 as null and void and legally non-est a nd also inoperative and in consequential against the rights and interests of the appellant and also to direct the defendants not to deprive the appellant of the ownership and possession of the land on the basis of the impugned judgment and decree in any manner whatsoever.
vi) That in terms of the judgment and decree dated 16.07.2011,s the court of Principa. District Judge, Budgam has held that the suit of t he appellant is not maintainable in terms of Order 7 Rule 11 read with Order 21 Rule 101 and the successive rules of the code of Civil Procedure and was accordingly dismissed. The court, however, directed that he execution petition filed by the respondents 1 and 2 shall come separately for further proceedings on 20.08.2011.
vii) That aggrieved by the judgment and decree dated 16.07.2011 the appellant filed the instant appeal before the Court which is pending consideration.
viii) That during the pendency of the appeal, the respondents 1 and 2 through one Fayaz Ahmad Ganie CFA No. 73/2011 Page 10 of 28 S/o Ghulam Ahmad Ganie R/o Old Barzulla, Srinagar approached the appellant and told him that the respondents 1 and 2 are ready to withdraw the execution proceedings filed by them before the court of Principal District Judge, Budgam for executing the judgment and decree dated 4.10.2006 provided he pays an amount of Rs. 6,00,000/- to them. The appellant accepted the terms of settlement and accordingly a compromise deed was reduced to writing and handed over to the respondents for signatures. The appellant also transferred an amount of Rs. 5,00,000/- in the account of respondent No. 1. He also paid an amount of Rs. 01,00,000/- to Fayaz Ahmad Ganie in cash.
ix) That after getting the amount of Rs. 06,00,000/- from the appellant and also the compromise deed for signatures, the respondents 1 and 2 did nto produce the compromise deed before the court and also did not withdraw the execution proceedings from the court of Principal District Judge, Budgam. They, however, asked the appellant to pay Rs. 10,00,000/- instead of Rs. 6,00,000 to them. Since the appellant had already paid an amount of Rs. 6,00,000/- to the respondents No. 1 and 2 , therefore, under duress, he paid an amount of Rs. 03,50,000/- to respondent No. 1 through cheque and Rs. 50,000/- to Fayaz Ahmad in cash.
However, even after receiving the said amount, they did not withdraw the execution proceedings from the court of Principal District Judge, Budgam. The appellant, therefore, submitted an application to SHO P/S Maisuma to intervene in the manner and redress the grievances of the appellant.
x) The after filing of the complaint by the appellant with the Police Station Maisuma, the respondent No. 1 and 2 along with Fayaz Ahmad Ganie came to the CFA No. 73/2011 Page 11 of 28 appellant and told him that they will return the amount to him by or before 05.1.2013 and in t his regard executed a Hundi on 26.12.2012.
xi) That the respondents No. 1 and 2 did not however keep their promise of returning the money by or before 5.1.2013. Instead they again deceived the appellant and to hoodwink him, issued five cheques bearing No. 265801, 265802, 265804 and 265805 dated 18.01.2013 from an amount of Rs. 02,00,000/- each in favour of the appellant towards repayment of the amount of Rs. 10,00,000/-. The cheques have, however, been dis-honored by the bank on account of insufficiency of funds. This fact was accordingly brought ot the notice of the respondents No. 1 and 2 by the appellant w ho told him that since they have settled the controversy with him, therefore, there is no question of returning any further amount to him.
xii) That in view of the aforesaid facts and circumstances, it is quite evident that the appellant and respondents No. 1 and 2 have arrived at a settlement with the appellant and the terms of the settlement have been reduced to writing. The settlement deed was taken by the respondents for signatures but they did not thereafter present the said settlement/ compromise deed before the Hon'ble court. They firstly received an amount of Rs. 6,00,000/- from the appellant in full and final settlement of the claim but subsequently raised the demand to Rs. 10,00,000/- which enhanced amount was also paid to them by the appellant. However, even then the settlement deed/compromise was not presented by them before the court for passing the appropriate orders in the case. They executed a Hundi for returning the amount of Rs. 10,00,000/- by or before 05.01.2013, but the amount was not returned to the appellant. They, CFA No. 73/2011 Page 12 of 28 however, thereafter handed over five cheques to the appellant towards the return of the amount of Rs.
10,00,000/- but t hose cheques were also dis-honoured by the Bank on account of insufficiency of funds. They no doubt returned meager amount back to the appellant thereafter to shut his mouth for some time, but the remaining amount was not returned by them on the ground that the matter has been settled for all times to come. Thus, notwithstanding the return of the meagre amount, the controversy between the parties having come to an end in terms of the settlement arrived at between the parties, therefore, the judgment and decree passed by Principal District Judge Budgam in case titled Mohammad Shaban Dar and anr. Vs. Nazir Ahmad Zargar and Others on 04.10.2006 stands fully satisfied in termsof money and accordingly the said judgment and decree is liable to be declared null and void as also in effective and inoperative against the rights and interest of the appellant and the execution proceedings filed by the respondent No. 1 and 2 in the court of Principal District Judge, Budgam deserves to be dismissed/filed.
Copies of the compromise stated to have been arrived between the parties, copy of bank statement, copy of application present before SMC, copy of Hundi have also been annexed
6. Objections have been filed by respondent No. 1 and 2 to the application filed by the appellant under order 23 Rule 3 CPC wherein it is stated that:
i) That the application is liable to be dismissed in limini as according to the own showing of the appellant the alleged compromise is not signed by the parties.
ii) That the application is liable to be dismissed as according to the own showing of the appellant the CFA No. 73/2011 Page 13 of 28 alleged amount of Rs. 10,00,000/- (ten lacs) is shown to have been received by Fayaz Ahmad Ganie S/o Gh.
Ahmad Ganie R/o Old Barzullah Srinagar and that he has executed alleged cheques and hundi for an amount of Rs. 10,00,000/- in favour of the appellant and accordingly the allegation by the appellant that the cheques and hundi were signed by the respondents 1 and 2 is nothing but a false assertion by the appellant and as such the facts and circumstances give lies to the allegations of the appellant.
iii) That the application filed by the appellant even in the fact of the legal positon as spelled out under Article 174 of the Limitation Act is liable to be dismissed as such an application was required to be filed within a period of 90 days when the perusal of the allegations made in the application makes the application time barred and accordingly liable to be dismissed.
7. Heard the rival arguments.
8. Learned counsel for the appellant while reiterating the factual matrix of the case as is referred above contended that the order impugned is erroneous and liable to be set aside. It is also submitted by him that if no suit is pending at the time when the proceedings in terms of the Order 21 Rule 97 or Order 21 Rule 99 are initiated then there is no bar for filing a suit and challenging the judgment and decree passed in a suit against a person who was not a party to the said suit. This is what has exactly been stated by the Hon'ble Supreme Court in case titled Vanayakan Baskaran Vs. Moolilal reported in (2008) 10 SCC 491 according to learned counsel. It is also being submitted that dismissal of suit is not warranted by application of above referred Rules 9 Order 21 of CPC. It is further submitted by him that during the pendency of the appeal the respondents No. 1 and 2 through one Fayaz Ahmad Ganai, CFA No. 73/2011 Page 14 of 28 one of their close relatives approached the appellant and told him that they are ready to withdraw the execution proceedings filed by them before the court of Principal; District Judge, Budgam, for execution of the judgment and decree He further submits that he rejection of the plaint in terms of the impugned judgment and decree was bad. He further submits that during the pendency of the appeal, the respondent No. 1 and 2 through one Fayaz Ahmad Ganai, one of their close relatives, approached the appellant and told him that they are ready to withdraw the execution proceedings filed by them before the court of Principal District Judge, Budgam for execution of the judgment and decree dated 04.10.2006 provided the appellant pays an amount of Rs. 6.00 lacs to them. The appellant accordingly transferred an amount of Rs. 5.00 lacs in the account of respondent No. 1 and also paid an amount of Rs. 1.00 lacs to Fayaz Ahmad in cash. After getting the amont of Rs. 6.00 lacs from the appellant and also the compromise deed evidencing the said fact for signatures the respondent No. 1 and 2 did not produce the compromise deed before the court and Also did not withdraw the execution proceedings. They however asked the appellant to pay Rs. 10.00 lacs instead of Rs. 6.00 lacs to them. Since the appellant had already paid an amount of Rs. 6.00 lacs to them, therefore, under duress he paid an amount of Rs. 3.50 lacs to the respondent No. 1 through cheque and Rs. 50,000/- to Fayaz Ahmad in cash. However evenb after receiving the said amount they did not withdraw the execution from the court of Principal District Judge, Budgam forcing the petitioner to file an application to SHO, Police Station Maisuma to intervene in the mater and redress the grievances of the appellant. After filing of the complaint by the appellant in police Station Maisuma the respondent No. 1 and 2 alongwith Fayaz Ahmad came to the CFA No. 73/2011 Page 15 of 28 appellant and told him that they will return the amount to him by or before 05.01.2013 and in this regard executed a hundi on 26.12.2012. The respondents No. 1 and 2 did not however keep thier promise of returning the money by or before 05.01.2013. Instead they again deceived the appellant and to hoodwink him issued five cheques dated 18.01.2013 for an amount of Rs. 2.00 lacs, each, in favour of the appellant towards the repayment of the amount of Rs. 10.00 lacs. Those cheques were however dishonored by the bank on account of insufficiency of funds. This fact was accordingly brought to the notice of the respondent No. 1 and 2 by the appellant, who told him that since they have settled the controversy with the appellant, therefore, there is no question of returning the money amount to him. It was in the aforesaid context of settlement arrived at by the appellant with the respondents No. 1 and 2 that he filed an application under Order 23 Rule 3 CPC before the Hon'ble court for allowing the appeal and while declaring the judgment and decree dated 04.10.2006 as satisfied, direct the dismissal of the execution proceedings filed by the respondents No. 1 and 2 before the court of Principal District Judge, Budgam.
9. The respondents No. 1 and 2 have filed their objections to the said application in which they have admitted that the appellant transferred an amount of Rs. 8.50 lacs in the account of respondent No.1 to lure him to enter into a compromise but the respondent No. 1 refused to enter into any compromise with the appellant and accordingly on the instructions of the appellant he handed over Rs. 8.50 lacs to Fayaz Ahmad Ganai for returning the same to the appellant. It was also stated by him that the application filed by the appellant under Order 23 Rule 3 is barred by limitation and as such the same deserves to be dismissed. At the time of arguing the matter, the CFA No. 73/2011 Page 16 of 28 counsel for respondent No. 1 and 2 besides reiterating the aforesaid grounds also relied on a judgment of the Orissa High court reported in AIR 1982 NOC 22 (Orissa). The appellant submits that in AIR 2013 (4) SCC 404, it has been authoritatively held that order 23 Rule 3 CPC has two parts. The first part refers to lawful agreement or compromise arrived at by the parties out of the court, which is under the 1967 Amendment of CPC required to be in writing and signed but the second part deals with the cases, where the defendant satisfies the plaintiff in respect of whole or part of the suit claim which is different from the first part of Rule 3. It has been further held that the expression "agreement or compromise" refers to the first part and not to the second part of Rule 3. The second part gives emphasis to the expression "satisfaction". In the instant case, the appellant is not relying on first part of Order 23 Rule 3. He however relies on the second part thereof to show that he has satisfied the claim of the respondents 1 and 2 by paying the amount of Rs. 10.00 lacs to them, as such the judgment and decree passed by the District Judge Budgam is liable to be set aside and the execution proceedings filed by them are to be dismissed. The respondent No. 1 and 2 have admitted the payment of money by the appealing but they have stated that it has been given back to Faaz Ahmad Ganai for its return to the appellant. The respondents No. 1 and 2 have not supported their objections with any material to show that they have given back the money to Fayaz Ahmad Ganai. There is also no affidavit or proof filed by respondent No. 1 and 2 having admitted the receipt of money from the appellant and there being no proof to show that the money was given back to Fayaz Ahmad, therefore, it has to be held that the appellant has satisfied the claim of respondents No. 1 and 2. It is very relevant to mention here that there is no CFA No. 73/2011 Page 17 of 28 period of limitation provided for an application under Order 23 rule 3 CPC. Article 174 applies to an application which is filed in terms of Order 21 Rule 2 CPC before the court. in AIR 1967 Ori. 59 which has been relied upon in AIR 1982 NOC (Ori.) it has been authoritatively held that order 21 Rule 2 applies to cases where money is payable under the decree whether there are other reliefs or not. It has also been held that Rule does not apply to a decree for mere eviction. In the instant case, the trial court had not passed any money decree. It was a decree where under a sale deed was declared null and void and it was held that the respondents No. 1 and 2 are entitled to the possession of the land from defendants 1 and 2 through execution petition filed by the respondent No. 1 and 2 on 08.06.2008, they only wanted that they be given the possession of the land. There was no claim made by them with regard to the payment of any money because there was no decree passed for money by the trial court. Consequently, the objection taken by the respondents NO. 1 and 2 with regard to application of Article 174 to the cse is misconceived. These are the additional points raised by counsel for the appellant.
10. On the other hand, learned counsel for the respondent submitted that the suit filed by the appellant before the trial Court for setting aside the judgment and decree dated 04.10.2006, passed in suit titled "Haji Mohammad Shaban Ganai and Another v. Nazir Ahmad Zarger and Another", by learned Principal District Judge, Budgam, was not maintainable and, as such, the order passed by the learned District Judge, does not need any interference. Learned counsel has placed reliance on judgment rendered in case titled Awadhesh Kumar Vs. Banshidhar Agawa Opposite Party AIR 1981 Patna 221, Manohar Lal and another Vs. Surjan Singh and anr. AIR 1983 P&H 393, Gurpeet Singh Vs. Chatur Bhuj Goel AIR 1988 SC 400 and K. CFA No. 73/2011 Page 18 of 28 Venkatachala Bhat and another Vs. Krishna Nayak and Ors. 2005 4 SCC 117 to canvass that the prayer made in CMP No. 277/2013 was misconceived. Reliance is also placed on the judgments referred by learned trial court to substantiate the plea for dismissal of suit was warranted.
11. Considered rival arguments and perused the material available on record. It will be proper herein to refer to following judgments of Hon'ble Apex Court for appreciation on the contentions raised from both the sides.
12. In Noorduddin Vs. K. L. Anand Civil Appeal No. 7466 of 1944, the respondents has sought to take possession of the property in pursuance of decree. He had obtained judgment with regard to the said property. The respondent had become the highest bidder in pursuance to auction for allotting of the said property and certificate has been issued in his favour. The appellant Noorduddin had made application under Order 21 Rules 97 and 98 read with section 151 CPC contending that his father and members of his family had not migrated to Pakistan though the Custodian had declared certain ancestral properties to be evacuee properties. The execution court dismissed the application on the ground that the dispute was adjudicated by the High court and therefore the claim was no longer tenable. Revision filed in this regard was dismissed. The question therefore arose before the Hon'ble Apex Court as to whether the executing court and the High court had properly appreciated the scheme under Order 21 Rule 97 and declined to entertain and adjudicate the claim of the appellant. Their Lordship made reference of Rules 97, 98, 100, 101, and 104 of CPC and observed that scheme of the Code clearly adumbrates that when an application had been made under Order 21 Rule 97 the court is enjoined to adjudicate upon right, title and interest claimed in the property arising CFA No. 73/2011 Page 19 of 28 between the parties to a proceeding or between the decree holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowable. It was further observed that the preceding CPC Amendment Act 1976 right of suit under Order 21 Rule 103 of 1908 code was available which have now been taken away. By necessary implication, the legislature relegated the parties to an adjudication or right, title or interest in the immovable property under execution and finality has been accorded to it. Thus the scheme of Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution.
13. In Usha Jain's case, Hon'ble Full Bench of Madhya Pradesh High court has held that Rule 97 of Order XXI is permissive and not mandatory. It is further held that the rule is permissive and it does not per-se force the decree holder to file application under Rule 97 when obstruction is caused in execution of the decree. It is held that the decree holder can ask for fresh warrant for delivery of the possession in terms of Rule 35 of Order XXI of the code.
i) In Fatima Automobiles Case, issue before the Hon'ble Madrass High Court was about the order passed on an application filed under Rule 97 of Order XXI. The order was held to be appealable and it was further held that no separate suit would lie. It was further opined that the order passed by the Rent Controller in an application under Order 21 Rule 97 was not an CFA No. 73/2011 Page 20 of 28 order passed under Section 18 (1) of the Rent Control Act and said order was held to be appealable.
ii) In Sham Lal's case this court on the basis of an un-amended section 47 of the Code has held that a decree holder can maintain suit for possession if the delivery of the possession resisted by third party. On the reasoning of the judgment, it cannot be said that a third part can institute suit.
iii) In Tazmul Ali's case Full Bench of Gauhati High Court has held that a suit is competent to challenge decree when same is impeached on the ground of fraud and temporary injunction can be granted.
iv) In Bhagwat Narayan Dwivedi's case, MP High Court has held that the executing court need not to defer the execution of the decree in the event resistance thereto is offered and the application under Rule 97 of Order XXI of Code is to be decided.
v) In Golam Nabi Chapawala's case Calcutta High Court held that that purchase pendante lite is bound by the decree as a judgment debtor.
14.On earlier round of litigation, an examination of the legality of the order passed by the learned District Judge, Budgam on 07.09.2009, this Court in Civil Revision No. 166/2009 noticed legal position after hearing of the parties. It was held that the executing court has jurisdiction to put the decree holder in possession when he files an application under Rule 97 of Order 21 read with Rule 98. It has also been noted that the application filed for execution of decree is pending and the pendency of the suit filed by the CFA No. 73/2011 Page 21 of 28 present appellant would not disable the executing court to consider the application of the judgment debtor/respondent herein filed under Rule 97 of Order 21. The executing court was held to be duty bound to determine the question referred to in the Rule 101, when raised by the parties. Further observations have been that orders made under Rule 108 or 103 have to be subject to the result of any suit that may be pending at time the execution proceedings were going on in which such order is made. Rule 104 thus has been interpreted as it is said that as every order made under rule 101 or rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceedings in which such order is made, if such the party against whom the order under rule 101 or rule 103 is made, has sought to establish a right which he claims to the present possession of the property. Simultaneously all questions have to be determined by the executing court in terms of the said rule and not by a separate suit. Accordingly the order challenged in revision was set aside by this Court and the matter was transmitted for further consideration. It is also noticed that the order XXI Rule 104 of the code has not been pressed into service before the trial court and arguments having not been addressed before the court in this regard, it would not be appropriate to return a finding in these proceedings about the same. The proceedings were accordingly closed and the parties were directed to raise this issue before the trial court and the trial court was directed to consider and take a decision thereon. Question was thus left open to be decided before the trial court where parties were directed to appear CFA No. 73/2011 Page 22 of 28
15. Concluding observation in order passed by the learned District Judge on 16.7.2011 (which had been set aside on hearing of Civil Revision supra) were as:
" I am conscious of the fact that in t his particular case the plaintiff is not claiming right to possession independent of judgment debtor but such a case is also to be visualized and it is to be seen whether he is without a remedy. The right of preemption which the decree holder is seeking against the judgment debtor and consequently against the plaintiff who has purchased suit scheduled land from judgment debtor Nazir Ahmad, is very weak even at the time of execution of such a decree that the decree holder has lost the right of preemption even by any subsequent event. Vendee of judgment debtor can also show on the same analogy that the decree of right to prior purchase has been obtained by playing fraud upon court as is alleged I this case. The stand taken by the plaintiff in the present case is that one decree holder had already sold his own land from the same survey number to a stranger, which fact he has suppressed and, therefore, he had no right to prior purchase as against the judgment debtor at all. The plaintiff in my view has stepped in the shows of judgment debtor, he should have an occasion to show that the decree holder has no right to prior purchase even at the time of execution of the decree, on the aforesaid ground."
16. However In terms of the impugned judgment falling subject matter of the appeal passed by learned District judge pursuant to direction passed in Civil Revision supra, it is observed that the appellant could not have filed suit and CFA No. 73/2011 Page 23 of 28 it was accordingly dismissed by taking resort to Order XXI of rule 97 read with Rule 103 of CPC.
17. It requires to be borne in mind however that learned trial court has not passed the order impugned in execution petition. The order has been indisputably passed in an application filed under Order 7 Rule 11 in a suit filed on behalf of the appellant herein. While deducing its conclusion from what has been provided in rule 97 onwards that suit as referred above was held to be bad. In application moved by respondents, the rejection of the plaint had been sought in terms of Order XXI Rule 97 to 103 of CPC while it being pleaded that the present appellant is bound by the decree.
18.The purport of the Rules 97 to 104 of CPC clearly is that the decree holder should not be vexed more than once and asked to bring a fresh suit if resistance or obstruction is made to the execution of the decree on any count. The executing court has to examine the contention raised if any before it. Since Rule 104 of the order 21 itself made it explicitly clear that any order passed in terms of the Rules 97 to 103 of CPC had to be subject to result of the suit that may be pending at relevant time, the conclusion drawn by the learned court was impermissible. The case relied on trial Court in its judgment dated 16.7.2011 is 1995 (1) SCC Page 42 which is a decision in a criminal matter. The relevant judgment was found to be (1995) 1 SCC 6 titled Bhanwar Lal Vs. Satyanarain and another. In the said case, the question which have fallen for determination was whether the application filed on 25.5.1979 by the appellant, though purported to be under Order 21 Rule 35(3) against Satyanarain, is convertible to one under Order 21, Rule
97. The court found that executing court has erred in directing the decree holder to make fresh application as it had been bound to execute the CFA No. 73/2011 Page 24 of 28 decree. It could not thus dismiss the second application on technical ground of limitation and successive on resjudicata.
19.In Silverline Forum Pvt. Ltd V. Rajiv TrustMANU/ SC / 0252 /1998: [1998] 2 SCR 587, the Hon'ble Apex court has held:
"this court held that where the resistance is caused or obstruction is offered by a transferee pendent lite, the scope of adjudication is confined to a question whether he was a transferee during the pendency of a suit in which the decree was passed. Once the finding is in the affirmative, the Executing Court must hold that he had no right to resist or obstruct and such person cannot seek protection from the Executing Court."
20.Their Lordship in Usha Sinha vs Dina Ram & Ors in Civil Appeal No. 1998 of 2008 while agreeing with that the preposition of law laid down in Silverline further observed as under:
'......In our opinion, the doctrine is based on the principle that the person purchasing property from the judgment debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree. Resistance at the instance of transferee of a judgment debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated.
For invoking Rule 102, it is enough for the decree holder to show that the person resisting the possession or offering obstruction is claiming his title to the property after the institution of the suit in which decree was passed and sought to be executed against the judgment debtor. If the said condition is fulfilled, the case falls within the mischief of Rule 102 and such applicant cannot place reliance either on Rule 98 or Rule 100 of Order XXI.
"....The High Court, in our opinion, rightly held that the appellant could not be said to be a 'stranger' to the suit inasmuch as she was claiming right, title and interest through defendant CFA No. 73/2011 Page 25 of 28 Nos. 4 and 5 against whom the suit was pending. She must, therefore, be presumed to be aware of the litigation which was before a competent Court in the form of Title Suit No. 140 of 1999 instituted by the present respondent against the predecessor of the appellant. As held in Bellamy, the fact that the purchaser of the property during the pendency of the proceedings had no knowledge about the suit, appeal or other proceeding is wholly immaterial and he/she cannot resist execution of decree on that ground. As observed in Silverline Forum, a limited inquiry in such cases is whether the transferee is claiming his right through the judgment-debtor. In our judgment, the High Court was also right in observing that if the appellant succeeds in the suit and decree is passed in her favour, she can take appropriate proceedings in accordance with law and apply for restitution. That, however, does not preclude the decree holder from executing the decree obtained by him. Since the appellant is a purchaser pendente lite and as she has no right to offer resistance or cause obstruction and as her rights have not been crystallized in a decree, Rule 102 of Order 21 of the Code comes into operation. Hence, she cannot resist execution during the pendency of the suit instituted by her. The order passed by the High Court, therefore, cannot be said to be illegal, unlawful or otherwise contrary to law."
21.Order 7 Rule 11 of the CPC envisages the contingencies when the plaint can be rejected. One of the contingencies laid down there is that the plaint can be "rejected" if the same is barred by law. Institution of suit being permitted under Rule 104 Order XXI of CPC so dismissal of suit could not be ordered. In the suit filed by the present appellant, it is being canvassed that the appellant had contended that the judgment was obtained by Mohammad Shaban as a result of fraud and misrepresentation. Learned District Judge in order challenged in Civil Revision (supra) had also noted in the conclusion that the respondent was not possessive of the right of prior purchase as he had stemmed his right on the basis of having proprietorship of a strip of land CFA No. 73/2011 Page 26 of 28 which he had latter sold and so the right if any had been at the time the respondents acquired the land had ceased to exist. This question and other points raised in plaint, have to be determined by the District Court itself.
22.Pertinent it may be that on the dismissal of the suit, the learned trial court has also observed that the order would be passed in the execution proceedings separately after the dismissal of the suit, and the execution proceedings had been directed to be put up on 20.8.2011. It thus has been unerringly shown that the orders which were not required to be passed under Order XXI Rules 97 to 103 of CPC were not passed in the said proceedings and even the scope for same was not considered in the said proceedings. The Learned District Judge has failed to mark the fine distinction between the two proceedings execution and fresh suit and that action referred in Rule 97 to 103 of CPC is related with execution proceedings and not fresh suit. Applying the mischief of Rule 97 to 103 of CPC in fresh suit was thus wholly misplaced. Effect, if any, on the continuation of suit of the application filed under Rule 101 has to be considered only after decision in above referred in execution proceedings and not before that.
23. Viewed thus the appeal is allowed and the order passed by the learned Principal District Judge dated 16.7.2011 is set aside. The Learned Principal District Judge shall proceed afresh in the suit and the execution proceedings in accordance with the law. Since the execution proceedings have been initiated at the instance of respondents and are pending consideration before the learned Principal District Judge, it is deemed appropriate to transfer the application bearing CMP No. 277/2013 along documents annexed to court of learned Principal District Judge, Budgam, for considering under law. Registry to transmit same accordingly to learned executing court i.e. Principal District Judge, Budgam. CFA No. 73/2011 Page 27 of 28
24.Parties shall appears before the learned trial court on 24 th June 2019. Copy of the judgment be sent to the learned trial court for information.
25.Disposed of as above.
(Rashid Ali Dar) Judge Srinagar 07.06.2019 "Aasif"
AASIF GUL 2019.06.12 00:34 I attest to the accuracy and integrity of this document CFA No. 73/2011 Page 28 of 28