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RAM CHANDRA versus KALIYAN SINGH AND OTHERS

High Court of Judicature at Allahabad

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Ram Chandra v. Kaliyan Singh And Others - WRIT - C No. 74127 of 2005 [2005] RD-AH 7105 (7 December 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT NO.54

CIVIL MISC. WRIT PETITION NO. 74127 OF 2005

Ram Chandra........................ Petitioner.

                               Versus

Kalyan Singh and others.............Respondents.

Hon. Mrs. Poonam Srivastava, J.

Heard learned counsel for the petitioner.

The orders dated 23.11.2005 and 26.7.2004 passed in execution proceedings are challenged in the present writ petition. The petitioner is defendant/judgment debtor.  The respondent/decree-holders filed a suit no. 46 of 1993 in the court of Civil Judge, Bulandshahar for specific performance of agreement.  The agreement to sell was registered document in respect of plot no. 447 area 18 Biswa, 3 Biswansi situated in village Kalan Kasar, Pargana Debai, District Bulandshahar for a sum of Rs.35,000/- (Rupees thirty five thousand) and Rs.13,000/- (Rupees thirteen thousand) was paid towards earnest money and balance amount of Rs.22,000/- (Rupees twenty two thousand) was to be paid at the time of execution of sale deed.  Since, sale deed was not executed, the suit was instituted, which was decreed on 9.9.1994.  An appeal filed by the petitioner against the aforesaid judgment and decree of the trial court was dismissed on 7.5.1999.  The second appeal filed by the petitioner was also dismissed by this Court in limine. The decree-holders filed an execution case no. 3 of 1999 in the court of Civil Judge, Bulandshahar.  The petitioner filed his objection under Section 47 C.P.C. to the effect that there are a number of trees standing on the land.  The trees were planted five years before, which can be sold for at least an amount of Rs.30,000/- (Rupees thirty thousand) and the decree-holders have no right whatsoever over the trees.  Besides the trees, there are two old Pakka room over which, the decree-holders have no right as well especially, since there is no mention about the trees and rooms in the deed of agreement to sell dated 18.7.1990.  Another application was moved by the petitioner for getting the spot inspection from Amin's report.  This objection was countered by the decree-holders especially, photographs were brought on record by the judgment debtor. Learned Civil Judge, Bulandshahar rejected the petitioner's application for spot inspection vide order dated 6.2.2004 specifically stating therein that these applications are filed only with a view to delay the execution proceedings.  This order was challenged in revision, which was dismissed vide order dated 25.3.2004. The revisional court refused to interfere as the order dated 6.2.2004 did not amount to a "case decided" and was interlocutory in nature. These are the two orders, which are challenged in the instant writ petition whereby executing court had refused to issue a commission for making spot inspection.  

Learned counsel for the petitioner has laid emphasis on Section 8 of the Transfer of Property Act, which is quoted below:

Operation of transfer.- Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof.

Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth;

and, where the property is machinery attached to the earth, the movable parts thereof;

and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith;

and, whether the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer;

and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.

Argument advanced on behalf of the petitioner is that Section 8 of Transfer of Property Act provides that only that part of the property passes to the transferee, which transferor is ''then' capable of passing the property.  Therefore, it is argued that at the relevant time, when the deed of agreement to sell was executed, no tree was standing on the land, therefore, the trees could not be said to be ''then capable of passing'.  The court below has clearly recorded a finding that the intention of Section 8 Transfer of Property Act provides unless a different intention is expressed or necessarily implied the property passes to the transferee from the transferor, which is capable of passing with the property.  Argument of the counsel for the petitioner is that these trees were planted sometimes at a later stage and cannot be given in execution proceedings appears to be farfetched. Therefore, rejection of objection under Section 47 C.P.C. is absolutely correct and well founded. It does not call for any interference.  It is also noteworthy that the question of trees or two rooms standing on the plot was never pleaded and neither any issue was framed nor any finding has been recorded in the suit, therefore, these objections cannot be raised for the first time during execution proceedings.  The suit was filed in the year 1993 and execution proceedings were commenced on 26.7.1999 and it was for the first time, the petitioner took a stand that the trees were planted five years before i.e. during pendency of the suit or appeal but no such objection was raised at that stage.

In view of these facts, I am of the considered opinion that these objections have been taken only with a view to circumvent execution of the decree.  The two orders rejecting application under Section 47 C.P.C. do not call for any interference in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India.  The writ petition lacks merit and is, accordingly, dismissed.

Dt.7.12.2005

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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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