Delhi District Court
Arjun Bulandani & Anr vs Babita Chawla on 9 August, 2012
Arjun Bulandani & Anr vs Babita Chawla
IN THE COURT OF SHRI INDER JEET SINGH, ADDL. DISTRICT JUDGE03,
ROOM NO. 308, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
MCA No. 02/12
(out of execution petition no. 36/2010)
1. Mr. Arjun Bulandani, S/o Late Shri Jassa Ram
R/o 4/13, Old Double Storey,
Lajpat Nagar - 4, New Delhi - 110024.
2. Mr. Kuldeep Gulwani, S/o Late Sh. Gian Chand,
R/o 4/11, Old Double Storey,
Lajpat Nagar - 4, New Delhi - 110024.
.....Appellants
(Judgment debtors no. 4 and 5 in the
execution petition)
Versus
Babita Chawla W/o Sh. Trilok Chawla,
R/o 4/9, Old Double Storey,
Lajpat Nagar - 4, New Delhi - 110024.
.....Respondent
(DH in the execution petition)
Appeal Presented on : 16.02.2012
Date of Institution : 17.02.2012
Decision reserved on : 21.07.2012
Date of Decision : 09.08.2012
MCA No. 02/12 Page 1
Arjun Bulandani & Anr vs Babita Chawla
JUDGMENT
1.1 The decree holder/respondent/plaintiff Smt. Babita Chawla had filed suit No. 216/2000 (new No. 983/09) before the court of Civil Judge, Delhi for declaration and for permanent prohibitory injunction against 6 persons, one of them was Municipal Corporation of Delhi but its name was later deleted, the title of the plaint was thus as follows: "Smt. Babita Chawla, W/o Sh. Trilok Chawla R/o 4/9, Old Double Storey, Lajpat Nagar - IV, New Delhi - 110024.
...Plaintiff Versus
1. Union of India, Through Secretary, Ministry of Urban Development, Nirman Bhawan.
2. Land and Development Officer, Nirman Bhawan, New Delhi.
3. Municipal Corporation of Delhi through its Commissioner, Town Hall, Chandani Chowk, Delhi.
4. Mr. Kuldeep S/o Gian Chand, R/o 4/11, Old Double Storey, Lajpat Nagar - 4, New Delhi - 110024.
5. Mr. Arjun Dass, S/o Smt. Savitri Devi, W/o Sh. Jassa Ram R/o 4/13 Old Double Storey, Lajpat Nagar - 4, New Delhi - 110024.
MCA No. 02/12 Page 2
Arjun Bulandani & Anr vs Babita Chawla
6. Sh. Bharat Singh,
R/o 4/15, Old Double Storey,
Lajpat Nagar - 4, New Delhi - 110024.
...Defendants"
1.2 In the said the plaintiff had prayed for decree of declaration that
she is owner of entire Lavatory block situated on the ground floor, adjacent to quarter No. 4 IV/9 Old Old Double Storey, Lajpat Nagar - 4, New Delhi -
110024, as per Scheme and to direct the defendants No. 4 to 6 to hand over the peaceful and vacant possession thereof to the plaintiff in exchange of additional area allotted to them by defendant No. 1 to 3, which has also been occupied and constructed by them vis a vis to restrain defendant No. 4 to 6 permanently from using common Lavatory Block, adjacent to quarter No. 4 IV/9 Old Old Double Storey, Lajpat Nagar - 4, New Delhi - 110024, and from asserting any right, title interest therein. The appellants were ex parte in the proceedings before the trial court. By decree/judgment dated 10.08.2009 by the court of Ms. Ravinder Bedi, JSCC cum ASCJ cum Guardian Judge, South, Delhi decreed the suit in favour of plaintiff and against the defendants as prayed. The decree holder/plaintiff/respondent filed execution petition No. 36/2010. The executing court of Ms. Anu Aggarwal, Civil Judge 02, South issued notice on execution petition to the MCA No. 02/12 Page 3 Arjun Bulandani & Anr vs Babita Chawla judgment debtors, inclusive of to the appellants herein. They (appellants/Judgment debtors) filed their objections, the same were dealt by the executing court in order dated 12.01.2012 and dismissed their objections. The appellants assail the impugned order dated 12.01.2012 in their present joint appeal.
2.1 The appellants assail the impugned order, by presenting facts and record, which is reiteration of the facts and record presented before the executing court of Civil Judge, Saket, New Delhi. In nutshell, the appellants' appeal and objections revolves around five points. Firstly, the appellant No. 1 has name and is known by name Sh. Arjun Bulandani but no person by name Arjun Bulandani was impleaded in the original suit. Similarly the appellant No. 2 has name and is known by name Kuldeep Gulwani but no person by name Kuldeep Gulwani was impleaded in the original suit.
Whereas, they have interest and right in the suit property. . Secondly, the respondent played a fraud on court by impleading one of the defendant No. 4 as Mr. Kuldeep and another defendant No. 5 Mr. Arjun Dass, in order to obtain and secure exparte judgment in her favour, for which she succeeded. The respondent/decree holder had also filed writ petition No. MCA No. 02/12 Page 4 Arjun Bulandani & Anr vs Babita Chawla 2122 of 1994 in Hon'ble High Court of Delhi and one Ms. Kanta was arrayed as respondent No. 4 deliberately and falsely, which shows that respondent actually played fraud upon the court and misrepresenting the identities of the parties, for which she has not right to seek relief on the principle of equity Thirdly, the appellants were never served with the summons by the trial court and the exparte order was obtained at the back of appellants, for which they are not bound by the decree. The original allottee of property bearing No. 04/11, Old Old Double Storey, Lajpat Nagar - 4, New Delhi -
110024 (including Lavatory Block property in question), was originally allotted to Sh. Santu Mal (since deceased), he left six legal heirs namely Sh.
Ram Chand, Smt. Kamla Devi, Ms. Anita, Sh. Gian Chand, Sh. Vasudev, Sh. Manohar Lal i.e., sons, daughter in law and grand daughter, which fact was within the knowledge of respondent and appellant No. 2 Sh.Kuldeep Gulwani is son of Gian Chand. The said other five persons, as coowner and in possession of said property, have not been impleaded party to the suit. Fourthly, by such acts and deeds of respondent, not only the identities of appellant was concealed but misrepresented by playing fraud and after obtaining exparte decree, the same is being executed against the appellants, which came to the knowledge of appellants when notice was MCA No. 02/12 Page 5 Arjun Bulandani & Anr vs Babita Chawla received, then record was obtained and inspected, it revealed all the acts and deeds of respondent. Fifthly, the appellants filed their objections before the executing court, while relying upon provisions of rule 101 of order XXI CPC, which reads as follows, was also not considered: Rule 101 of Order XXI CPC "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 purposes, the curt shall notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."
The appellant presented and demonstrated all such facts and features before the executing court, however, neither ld. Civil Judge appreciated them nor considered the position of law nor law laid down in judgments presented, merely passing reference was made. Whereas, the appellant ought to have been given an opportunity to lead evidence on the points raised, formal issues were to be framed but instead the objections were dismissed in a summary way. The respondent had played a fraud but the executing court failed to appreciate. It is settled position of law that declaratory decree is judgment in personam and not judgment in rem, it MCA No. 02/12 Page 6 Arjun Bulandani & Anr vs Babita Chawla cannot be executed against the appellants who are not party to the suit.
The principle of audi altrem partem and of natural justice has not been followed by the executing court. As appears, the respondent/plaintiff had filed the suit and sought the declaration on the basis of some scheme but it was never enforced or implemented by the Union of India or Land and Development Office, which appears from the proceedings of Writ Petition (C) No. 8113 of 2009 and order dated 13.07.2010 therein, thus no rights have emerged or created in favour of respondent to seek declaration or possession or prohibitory injunction, but the objections were dismissed without affording opportunity.
2.2 During the course of arguments, similar contentions have been advanced and appellants fortify their contentions while referring and relying upon the following precedents/ case laws:
1. Shreenath and Anr vs Rajesh & Ors AIR 1998 SC 1827 - It is held that the expression "any person" under subcl. (1) of rule 97 is used deliberately for widening the scope of power so that the Executing Court could adjudicate the claim made in any such application under order XXI rule 97. thus by the use of the words "any person", it includes all person resisting the delivery of possession, claiming right in the property even those not bound by the decree, includes tenants or other persons claiming right on their own including a stranger.
MCA No. 02/12 Page 7 Arjun Bulandani & Anr vs Babita Chawla
2. Inder Singh vs Piara Singh & Anr AIR 1993 P&H 83 - it is held that as per Order XXI rule 35, the possession of the immovable property covered by a decree can be delivered to the decree holder by removing a person bound by the decree only. In other words, a person who establishes that he is not bound by decree passed against any other person, cannot possible be dispossessed in execution of that decree. The executing court is bound to consider the application of a person, in possession, where he was not a party to the decree, before he is dispossessed.
3. Bhagwat Narayan Dwivedi vs Kasturi D/o Ramdayal AIR 1974 MP 26
- it is held that the executing court has no jurisdiction to remove a third party not bound by the decree from possession and deliver possession to the decree holder or auction purchaser, unless and until (a) it holds that such a person is bound by the decree, or (b) it makes an order under Order XXI rule 98 CPC which presupposes the making of a complaint by the decreeholder under order XXI rule 97 of the Code. Further, if the executing court is satisfied that the resistance or obstruction was occasioned by a third person claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment debtor, then the executing court will refuse to deliver possession to the decree holder and dismiss the application.
4. Nusserwanji E. Poonegar & Ors vs Mrs. Shirinbai F. Bhesania & Ors AIR 1984 Bombay 357 - wherein it was held that issues must be framed, the attention of the parties must be focused upon the points which are to be decided, evidence must to allowed to be led and documents should be allowed to be produced and relied upon. The adjudication under Rule 101 cannot be made on the basis of an affidavit alone unless the parties themselves so desire. Substantial MCA No. 02/12 Page 8 Arjun Bulandani & Anr vs Babita Chawla questions including the questions of title to immovable property of high value are very often involved even in execution proceedings. Further held, that considering all these aspects, one must agree that the proceedings are in the nature of a suit and should be conducted in an appropriate manner. Rule 105 of order XXI only broadly prescribes the outline of the procedure which the court has to follow.
5. Silverline Forum Pvt. Ltd. vs Rajiv Trust & Anr 1998 (3) SCC 723 - held that executing court has a duty to decide that whether the person who is resisting/obstructing to vacate the property is bound by the decree.
6. N.S.S. Narayana Sarma & Ors vs M/s Goldstone Exports (P) Ltd. & Ors AIR 2002 SC 251 - held that when any person claiming title to the property in his possession obstructs the attempt by the decree holder to dispossess him from the said property the executing court is competent to consider all questions raised by the person offering obstruction against execution of the decree and pass appropriate order which under the provisions of Order XXI rule 103 is to be treated as a decree. Further, in rule 101 it is categorically declared 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 other law for the time being in force, be deemed to have jurisdiction to decide such questions.
7. Rajeev Dutta & Ors vs Punjab Wakf Board & Anr AIR 2003 NOC 556 (Him Pra) - held that the provisions of Rule 101 are mandatory and provides for inquiry into the question of right, title and interest raised MCA No. 02/12 Page 9 Arjun Bulandani & Anr vs Babita Chawla therein and ambit and scope of such inquiry will depend on the facts and circumstances of each cases i.e., in a case if the question raised can be decided on the basis of admitted and undisputed facts a comprehensive inquiry may not be necessary but in a case where contentious pleas of facts are raised, the executing court is bound to hold a detailed inquiry and permit the parties to lead evidence to prove their rival please based on facts. Further, the enquiry under rule 101 being mandatory the executing court could not and should not have proceed to dismiss the objection petitions without affording any opportunity to the parties to prove their rival averments and that too in the absence of production of proof of the Will set up by the appellants.
8. Ahsan Devi & Anr vs Phulwasi Devi & Ors AIR 2004 SC 511 - held that the legislature purposely amended provisions in order XXI to enable the third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of litigation and arrest delay caused in execution of decrees. Further, a third party resisting or obstructing the execution of the decree can also seek adjudication of his rights under order XXI rule 97 CPC in the same way as the decree holder.
9. S.P. Chengalvarayanaidu vs Jagannath 1994 (1) SCC 1 - it is held that no equity is to be exercised in favour of person who has played fraud upon the court and the said question can be determined even in collateral proceedings.
10.Kancherla Lakshminarayana vs Mattaparthi Syamala & Ors 2008 (14) SCC 258 - held that the provisions of order XXI rule 58 CPC read with the provisions of order XXI rule 101 CPC spell out the duty of the court to adjudicate all the questions relating to the rights of the parties and that the executing court had failed to consider the provisions in MCA No. 02/12 Page 10 Arjun Bulandani & Anr vs Babita Chawla the proper perspective and it should have decided as to whether the decree between the first the second respondents is a collusive decree merely meant to defeat the right of the appellant.
3. The respondent opposed the appeal vehemently while referring the record of original suit and the proceedings before executing court that the court had dealt all the aspects in detail in order dated 22.01.2012.
Neither the respondent made any misrepresentation nor played any fraud either upon the court or on the appellants nor she concealed identities of appellant and complete particulars were written in the record and notice/summons were issues properly, which were received by the appellants under their signatures. They abstained from their appearance in the court. Now they cannot took the umbrella of rule 101 of order XXI CPC to say to start denovo trial, after keeping silent for long period when the suit was pending for around a decade. They remained absent and abstained from the proceedings at their own wish or peril. In fact the appellant No. 1, during the proceedings in appeal also admitted his signatures on the summons, which have been duly recorded in the judicial proceedings dated 19.04.2012 when had been shown receipt of summons, available at page No. 407 in the trial court record. The other appellant was also served with summons in his name.
MCA No. 02/12 Page 11 Arjun Bulandani & Anr vs Babita Chawla On the one hand the appellants have got additional area and occupied it, which was in lieu of exchange of Lavatory Block under the Scheme, but they want to deprive the respondent of the suit property, which has been decreed in favour of respondent/decree holder. The appeal is abuse of process of the court and it is liable to be dismissed. The respondent fortifies her contentions while relying upon the following case laws:
1. Minakshi Saini & Ors vs Gurcharan Singh Bharmia & Ors Vol. CXXXI (20022) The Punjab Law Reporter 439 - held that framing of issues would depend upon the facts and circumstances of each case and it is not incumbent upon the executing court that it must put to trial every objected filed in execution proceedings may be frivolous, vexations and delay causing objections can be summarily decided.
Further, adjudication of objections does not mean that framing of issues is always necessary for the executing court and the term adjudication as used in rules does not start and end with the framing of issues but it requires appreciation of the case of the objector and documents in support of such objections. Thus, framing of issues is not alway necessary and appreciation of pleadings of the objector and his documents means adjudication.
2. M/s Cauvery Coffee Traders, Mangalore vs M/s Hornor Resources (intern.) Co. Ltd. 2011 (4) CCC 723 (S.C) - As per the doctrine of election and rule of estoppel of section 115 of Indian Evidence Act neither one can approbate and reprobate nor to blow hot and cold or fast and loose. A person may be precluded by his actions or conduct MCA No. 02/12 Page 12 Arjun Bulandani & Anr vs Babita Chawla or silence when it is duty to speak from asserting a right which he would have had.
3. State of Punjab vs Sanjogta & Ors Vol. CXXVIII(2001`2) The Punjab Law Reporter 610 - held a third party has another remedy to institute an independent civil suit for declaration of its title, claiming therein relief of injunction to protect its possession and bar of rule 101 of order XXI CPC is not applicable to it.
4. The executing court in its order dated 12.01.2012 came to the conclusion that, firstly, appellant No. 2 was sent the notice on execution petition, at the same address where summons for suit was sent and served, secondly, the summons were sent in the name of Kuldeep by stating his parentage and address, which were duly served upon him, therefore, the appellant No. 2 cannot say that he was not served or his name was not Kuldeep but Kuldeep Gulwani or he was not arrayed properly. Thirdly, he cannot be construed third party since he was a party to the suit and he is a judgment debtor, therefore, there were no merits in the objection. Similarly objections of appellant No. 1 were dismissed that notice on execution petition and summons on suit were sent at the same address, which were served upon him vis a vis he is neighbourer of respondent. The name of Arujn Dass was mentioned along with C/o Smt. Savitri W/o Sh. Jassa Ram and then address of appellant No. 1 and in the same fashion notice on MCA No. 02/12 Page 13 Arjun Bulandani & Anr vs Babita Chawla execution petition were sent and served upon him. He cannot assert or claim that for want of summons in his name, as mentioned in the objections, he was not a party to the suit or he is to be treated alike third party for the purposes of objections.
5. Findings The contentions of both sides are assessed in the light of statutory provisions of law and the record of suit No. 983/2009 (216/2000) and also record of execution petition No. 36/10. Now the points raised are taken one by one.
5.1 The appellants contended one major point in three forms by projecting that they are known by name Mr. Arjun Bulandai and Mr. Kuldeep Gulwani but their respective names were mentioned in the original suit as Arjun Dass and Kuldeep respectively, which amounts to concealment of their true identity and the respondent had played fraud upon the court as well as on the appellants. However, for the following reasons this major point carries no weight: i. The appellants in the present appeal and in their objections are projecting that Kuldeep Gulwani and Kuldeep are two different MCA No. 02/12 Page 14 Arjun Bulandani & Anr vs Babita Chawla persons and Sh. Arjun Bulandani and Arjun Dass are two different personalities. Whereas, their names have been mentioned with parentage and complete address, which were also mentioned in the summons sent to them. Therefore, it is not like this that Kuldeep Gulwani and Kuldeep are two different persons and Sh. Arjun Bulandani and Arjun Dass are two different personalities.
ii. Mr. Kuldeep has signed his objections filed before the executing court and he also signed the present appeal, besides Vakalatnama. In the objections dated 06.04.2011 and appeal dated 16.02.2012 and Vakalatnama dated 16.02.2012, at all places he put his signature as "Kuldeep" without his surname. Therefore he himself writes his name as Kuldeep. Further, the trial court summons were served upon him on 09.11.2000 (at page No. 405 in the trial court record) and as per report the process server had inquired the name of Kuldeep S/o Sh. Gian Chand and after confirmation by the addressee, the summons were delivered to him, which the appellant No. 2 acknowledged it under his signature "Kuldeep". There is no dispute of his parentage and address mentioned in the suit as well as narrated by him in the present appeal.
iii. Similarly, appellant No. 1 was also sent summons by the trial court and the same were received and acknowledged by him on 09.11.2000, which mentions his parentage and address and the process server reports that the summons were delivered after confirming the name of addressee and then it was delivered to him. Further, appellant No. 2 appeared in the court personally and he was shown the summons at page No. 407 (in the trial court file) and he confirmed that the summons were acknowledged by him under his MCA No. 02/12 Page 15 Arjun Bulandani & Anr vs Babita Chawla signatures, the proceedings were also recorded in the appeal file on 19.04.2012.
iv. To say, on the basis of reasons (i) to (iii) above, that the appellants are the same person, who were not only party in the suit but also the summons were delivered to them and they acknowledged under their signatures. The appellants cannot say that summons were sent to the persons other than the appellants. They also cannot say that their identity was concealed or fraud was played because of want of /mentioning of their surname nor they came to know about the proceedings in the execution petition.
v. The appellants abstained to appear in the proceedings after service of summons on them and they were proceeded exparte. Had they appeared in the court, they could make all their submissions inclusive on the point of nonjoinder of other persons, as projected in the objections or in the present appeal but for want of their appearance there and their absence, now they cannot say that the case proceeded without considering their plea or opportunity of being heard. The court had served them with the notices and thereafter proceeded as summons were also directed before date of hearing on 14.11.2000 but they remained unserved. It carries no weight to say that the suit was suffering from nonjoinder of others and misjoinder of appellants.
vi. Therefore, considering the aforementioned reasons and the reasons given by the executing court in order dated 12.01.2012, to that extent the order is confirmed.
MCA No. 02/12 Page 16 Arjun Bulandani & Anr vs Babita Chawla 5.2 The appellants' contend the Scheme of government was not
impleaded and they ought to have been given an opportunity to lead evidence, after framing formal issues but the objections were dismissed summarily in view of settled propositions of law. Whereas, the respondent has contrary intentions. For the following reasons, appellants' contentions on the point of Scheme and on the point of rule 101 of order XXI CPC are declined:
(a) The appellants had reference of Writ Petition No. 8113 of 2009 that the scheme was nonenforceable or there are some other disputes. Whereas, Union of India and L&D Office, Nirman Bhawan (defendants No. 1 and 2 in the suit) have given complete detail by reference to various writ petitions inclusive of W.P. No. 1703 of 1991 under the title CType Double Storey NonCorner Quarters Residents' Welfare Association vs Union of India and order dated 29.05.1992 that number of suits were pending before the subordinate courts and let the matter be decided by these courts. There are also guidelines dated 11.11.1983 with regard to Scheme. To say, the appellants are projecting as if the Scheme is nonexistent or nonest but it is not so.
(b) It is not mandatory requirement of law to frame formal issues and record the evidence under the provisions of rule 101 order XXI CPC, it depends on the circumstances of each case. Since the present appellants were party/defendants in the original suit and they were served with the summons, therefore, the trial court has rightly not recorded the formal issues or evidence, since it would have been re MCA No. 02/12 Page 17 Arjun Bulandani & Anr vs Babita Chawla opening of case/denovo trial under the objections of appellant in execution proceedings. Whereas, the appellants could have participated in the proceedings of trial court.
(c) The appellants were very well aware of the trial from the very inception, it cannot be construed that they came to know from the proceedings/notice on execution petition about the impugned decree/judgment.
(d) In view of the discussion, analysis and reasons (a) to (c) above, the findings of executing court in order dated 12.01.2012 on other points is also confirmed.
6. Thus, appeal is dismissed and impugned order dated 12.01.2012 is confirmed. The trial court record of original suit No. 983/09 and record of execution petition No. 36/2010 be returned to the trial court and executing court respectively along with the copy of present judgment.
The appeal record is consigned to record room.
Announced in open Court (INDER JEET SINGH)
on 18th Sharavan, Saka 1934 Addl. District Judge03, South District,
Saket/09.08.2012
MCA No. 02/12 Page 18
Arjun Bulandani & Anr vs Babita Chawla
MCA No. 02/12
09.08.2012
Appearance: Proxy counsel for appellants.
Proxy counsel for respondent.
Vide separate judgment announced today, appeal is dismissed and impugned order dated 12.01.2012 is confirmed. The trial court record of original suit No. 983/09 and record of execution petition No. 36/2010 be returned to the trial court and executing court respectively along with the copy of present judgment. The appeal record is consigned to record room.
(INDER JEET SINGH)
Addl. District Judge03, South District,
S Saket/09.08.2012
MCA No. 02/12 Page 19