Punjab-Haryana High Court
Chander Parkash Malhotra vs R.B.S. Chahal, Advocate And Anr. on 14 January, 1998
Equivalent citations: (1998)119PLR628
JUDGMENT Sat Pal, J.
1. This revision petition is directed against the order dated 26th April, 1996 passed by Sub Judge, 1st Class, Chandigarh. By this order, the learned Sub Judge held that the objection- petition filed by the judgment-debtor (petitioner-herein) was not legally tenable as in these proceedings, the application of the decree-holders was not an execution application. By the said order, the learned Sub Judge also disposed of the application of the decree-holder dated 17.4.1995, holding that the option to purchase the share of the decree-holder was duly granted to the judgment-debtor vide order dated 8.6.1995 and the judgment-debtor was directed to deposit the amount on 29.7.1995, but the judgment-debtor having failed to deposit the same within the stipulated period, the decree-holder had exercised his option to purchase the share of the JD by placing on record the draft of Rs. 2.50 lacs in favour of JD. The learned Sub Judge directed the JD to take the draft of Rs. 2.50 lacs as per Rules in consideration of his share for the demised premises and if he failed to take the draft within 30 days, then the amount of Rs. 2.50 lacs was directed to be deposited in the Treasury for payment to the JD as per Rules for getting the decree-holder declared to be the purchaser of the share of JD. It was also observed that certain steps had to be taken for the execution of the conveyance deed for which the decree-holder could file regular execution application if permissible under law.
2. Briefly stated, the facts of the case are that the plaintiff-decree-holder (respondent herein) filed a suit for partition and for possession and rendition of accounts in, respect of the damages and usage with effect from 14.7.1973 in respect of House No. 50, Sector 10-A, Chandigarh. The suit was decreed on 30.9.1983. The judgment-debtor (petitioner-herein) preferred an appeal before the District Judge against the aforesaid preliminary decree and the preliminary decree was affirmed with slight modification. The judgment- debtor preferred the second appeal bearing R.S.A. No. 2666 of 1984 in this Court and the said appeal was dismissed by this Court.
On 1.12.1993, while dismissing R.S.A. No. 2666 of 1984, the learned Single Judge had inter alia directed the trial Court to determine the market value and give an option to the appellant to purchase the share of the added respondents. In case he fails to do so within the time, for the purpose, then the trial Court may allow the added respondents to pay the share of Chander Parkash-appellant. In pursuance of this direction, the trial Court vide its judgment dated 22.3.1995 fixed the market value of the property in dispute at Rs. 20 lacs. The decree was accordingly passed.
From the records, it appears that the judgment-debtor filed objection-petition before the executing Court by alleging that final decree as passed by the trial Court was not in conformity with the directions contained in the order dated 1.12.1993 passed by the High Court. Thereafter, the decree-holder by invoking the provisions of Sections 151/152 of the Code of Civil Procedure prayed for suitable modification/correction in the final decree. The application of the decree-holder was disposed of by the learned trial Court vide order dated 3.2.1996 and the following lines were ordered to be added in the decree :-
"Since the mode to bid amongst themselves is not acceptable, the market value has been determined and an option be given to the appellant to purchase the share of the added respondents. In case he fails to do so, within the time granted for the purpose, the added respondents be allowed to pay the price of the share of Chander Parkash - judgment-debtor - defendant."
Against the judgment and decree dated 22.3.1995 the judgment-debtor (petitioner-herein) filed an appeal. On the amendment of the decree, he sought the permission to amend the grounds of appeal and his request was accepted and thereafter the amended grounds of appeal were taken on record. This appeal was considered by the learned Additional District Judge, Chandigarh, who vide his judgment dated 30.4.1996 dismissed the appeal. The aforesaid judgment dated 30.4.1996 was challenged by the JD in this Court in R.S.A. No. 1330 of 1996 which was dismissal by a learned Single Judge of this Court vide judgment dated 7.2.1997 (= (1998-1)118 P.L.R. 237). Against the judgment dated 7.2.1997, the judgment-debtor filed review application bearing R.A. No. 17 of 1997 which was also dismissed on 12.3.1997. S.L.P. Nos. 8048 and 8049 of 1997 filed by the judgment-debtor against the aforesaid judgment were also dismissed by the Supreme Court on 21.4.1997.
It may be relevant to note here that on 24.4.1996, the decree-holder gave the following statement before the learned trial Court :
"JD be directed to accept the amount of Rs. 2.5 lacs which is his 1/8th share in the disputed properly so that the decree-holder be deemed to have purchased the same as per final decree dated 22.3.1995 drawn up on the directions of the Hon'ble High Court. The JD may also be directed to hand over the vacant possession forthwith. Since the JD has already refused to exercise his option given to him vide order dated 8.6.1995, so that clause stands fulfilled. This application is not an application under Order 21, CPC for execution of the final decree. No other relief except stated above is claimed in this application."
From the above statement of the decree-holder it is clear that the decree holder vide application filed before the learned trial Court wanted the relief that direction be given to JD to accept the amount of Rs. 2.5 lacs and consequently, the decree-holder should be deemed to have purchased the same as per the final decree. From this, it is further evident that the decree-holder had taken the categorical and specific stand that the present application was not an application for execution of final decree as per Order 21, CPC.
3. Mr. Pathania, learned counsel appearing on behalf of the petitioner (judgment-debtor) submitted that the petitioner-JD was not given the option or time to take the payment of 7/8th share of the property in dispute to the decree- holders after the final decree was passed. He further submitted that till the final hearing of this petition, the petitioner was not granted any opportunity to exercise the option or to pay the amount to the respondent-decree holders. I, however, do not find any merit in this contention. From the records of R.S.A. No. 1330 of 1996, I find that this point was raised by the judgment- debtor against the decree-holders. In that appeal also, the contention of the judgment-debtor was rejected by the learned Single Judge of this Court vide judgment dated 7th February, 1997 (= (1998-1)118 P.L.R. 237), which has been upheld by the Supreme Court as stated in the earlier part of the judgment. In the said judgment, it was held that inspite of grant of more than six weeks, the appellant (JD) had not made the deposit. The relevant portion from the judgment dated 7th February, 1997, is reproduced herein below:
"The appellant who has only 1/8th share in the property continues to remain in possession. Still further, the appellant is not willing to either buy or sell at today's price. Even otherwise, the appellant had not produced any evidence to show that he was possessed of the means to pay the price even at the value as assessed by the Court in March, 1995. In view of this situation, there is no equity or justice in favour of the appellant. It appears that he is only trying to take undue advantage of the fact that the trial Court had not specifically mentioned that the appellant had the option to purchase or sell the property within a specified time. It may also be noticed that vide order dated June 8, 1995, the executing Court had called upon the appellant to make the deposit on July 29, 1995. In spite of the grant of time of more than six weeks, the appellant had not made the deposit. This fact further shows that the effort was only to delay and not to have the matter decided."
4. The learned counsel for the petitioner further submitted that the impugned order dated 26.4.1996, has been passed by the learned trial Court in the execution proceedings on the application filed by the decree-holders for implementation and execution of the final decree dated 23.3.1995. He, there fore, contended that in the execution proceedings the direction given in para 26 of the impugned order to the effect that the decree-holder had exercised his option to purchase the share of the JD by placing on record the draft of Rs. 2.50 lacs in favour of JD was beyond the jurisdiction of the executing Court. He also contended that the learned trial Court also erred in holding that the objections filed by the judgment-debtor Under Section 47 CPC were not legally tenable inasmuch as all the objections raised in the objection petition were required to be decided by the executing Court. In support of this submission, he placed reliance on a judgment of this Court in Deepo v. Iqbal Singh, (1994-2)107 P.L.R. 152). I, however, do not find any merit in this contention also. From para 19 of the impugned order, I find that the judgment-debtor had raised an objection that the application filed by the decree-holders was not in accordance with Order 21, Rule 11(2) CPC. The stand of the decree-holder was clarified by the decree-holder in his statement dated 24.4.1996 before the trial Court that the application dated 17.4.1995 filed by the decree-holder was an application for seeking certain directions to the JD and the same was not a regular application for execution of the decree. In view of these facts, the application filed by the decree-holder was not an execution application under Order 21, CPC. From the impugned order, it is evident that the JD had been directed to take the draft of Rs. 2.50 lacs being the! value of his share which was deposited by the decree-holder before the learned trial Court. It has further been observed in the impugned order that if the JD fails to take) the draft within 30 days then the amount of Rs. 2.50 lacs be deposited in the Treasury for payment to JD as per Rules for getting the decree-holder declared to be the purchaser of the share of JD, Thus it is only after the decree-holder was declared to be purchaser of the share of the JD that the decree-holder could file the regular execution application under Order 21, CPC. The decision of this Court in the case of Deepo (supra) is, therefore, not applicable to the present case as the regular execution application is yet to be filed by the decree-holder.
5. Another point raised by the learned counsel for the petitioner was that till the decree is fully satisfied the co-owner can purchase the share of stranger-transferee. He submitted that since the decree in the present case has not yet been fully satisfied, the petitioner should be given the option to purchase the 7/8th share of the decree-holder on the basis of the value of the property having been fixed at Rs. 20 lacs in the year 1995. In support of this contention, the learned counsel placed reliance on a judgment of the Supreme Court in Ghantesher Ghosh v. Madan, (1996)11 S.C.C. 446). This contention again his been fully discussed in the judgment dated 7th February, 1997 (= (1998-1)118 P.L.R. 237) passed by this Court in R.S.A. No. 1330 of 1996. In this judgment it has been observed that the learned trial Court had assessed the value of the house at Rs. 20 lacs in March, 1995 and since the judgment-debtor failed to exercise the option at the relevant time, he could not be given the option now at the then value of the house. It has been noticed in that judgment that the appellant (petitioner herein) who was present in per son, informed his counsel that he was neither willing to purchase the property at the market value which may be fixed today nor he is willing to sell at the market price of today. Accordingly, this contention raised by the learned counsel for the petitioner is rejected.
6. For the reasons recorded herein above, I do not find any merit in this petition. Accordingly, the petition is dismissed with costs.